Saturday, July 02, 2016

Justice Thomas' America: Originalist or Republican?

Eric Segall

I had closed up shop for the term looking forward to and packing for my family vacation next week. I then made the mistake of glancing at my Twitter feed and noticed that the National Review On Line was commemorating the 25th anniversary of Justice Thomas' nomination with a mini-symposium. I told myself not to look, don't look, please don't look. But my head beat up my heart and there I saw the tributes by my friends Randy Barnett and Josh Blackman, among others, to Justice Thomas. I am hosting a discussion group on Thomas at a law conference in August (Josh will be there as will other conservatives/libertarians such as Ilya Somin), and so I just had to look. 

The NRO participants paid great tribute to Thomas' commitment and fealty to originalism above all else-above politics, above personal values, even above (unlike Justice Scalia) Supreme Court precedent. In Randy's words, "today is the day to remember that no judge or justice has done more to put originalism into practice, without fear or favor, than Clarence Thomas."

Justice Thomas' America is one where Americans possess strong rights to guns but no rights to abortion; where no government, city, state or federal may take racial criteria into account where trying to address our racist past and current racial problems; where gays and lesbians are strangers to equal rights under the law,;where Congress is prohibited from addressing serious economic issues that plague our country; where the protections for criminal defendants set forth in the 4th, 5th, 6th, and 8th Amendments to our Constitution barely exist; where corporations may spend as much money on elections as they want because money is speech and corporations are people; where the President of the United States may fight terrorism without any constitutional check from the other two branches of government; where state and local governments are practically prohibited from regulating private property for the common good; where states may place term limits on members of Congress; and where the rights of majority religions constitute constitutional trump cards authorizing discrimination against minorities and traditionally disadvantaged groups.

Maybe Justice Thomas has carefully studied the history and ratification of the Original Constitution and the Reconstruction Amendments to come up with these conclusions. Maybe his votes really are in service of returning this country to the constitutional vision of slave-holding white males who thought women were the property of their husbands. But, it just so happens, that Justice Thomas' America looks exactly like the political platform of the pre-Donald Trump Republican Party (certainly much more so than the Republican Party of 1868). Maybe this is just a coincidence.

One final word about hubris before I go. Randy Barnett goes out of his way to praise Justice Thomas for willing to overturn generations of Supreme Court precedent if text and history so demand. But that precedent is the result of a complex combination of prior Justices' calculations of law, politics, social reactions, counter-reactions and values. Certainly times change and with those changes so should Court decisions. But it takes a special insight, a special intelligence, and a special feeling of superiority to think that one's own perspective on the complex relationships between vague text, contested history, and the rights and privileges of our people and the our governments can be resolved neutrally through an originalist methodology, and then end up with the political platform of the 1992 Republican Party. I envy that kind of insight.

HAPPY INDEPENDENCE DAY WEEKEND