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.



Shag from Brookline said...

Randy was smoked by originalist Justice Scalia's concurring opinion in the intrastate ganja Raich case but Randy took solace in originalist Justice Thomas' dissent which swallowed, hook, line and sinker, Randy's chronic case of Wickburn.

Joe said...

"He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies."

Think of Thomas as a sort modern day William O. Douglas, just at the other end of the spectrum.

Sam Rickless said...

The main problem for Justice Thomas, which is similar to the problem faced by Justice Scalia, is that, qua originalist, he is either obviously mistaken or inconsistent. Justice Thomas's touchstone is the original public understanding (OPU). It is unclear, though, what OPU amounts to. One would have thought that OPU would be determined by original public *meaning*: meaning, after all, is what we understand when we grasp what words are being used to express. Meaning, however, is not determined, nor is it identical, to patterns of word *application*. Even if everyone thought in 1788 that psoriasis is contagious, and applied the word "contagious" to "psoriasis", it doesn't follow that psoriasis is contagious, and it doesn't follow that a Court should hold that a law requiring quarantine for persons carrying contagious diseases is constitutional because consistent with original public meaning. But this is not how Justice Thomas operates. Consider, for example, his originalist lecture on whether the 1st Amendment invalidates laws that restrict what adults can say (or sell) to minors. The First Amendment says that "Congress shall make no law abridging...the freedom of speech". According to Justice Thomas' dissent in Brown v. Entertainment Merchants Association, we should look to whether the founders would have included within "freedom of speech" a right to speak to minors without the consent of their parents. According to original public *meaning* methodology, this kind of historical enquiry is neither here nor there. So Justice Thomas's practice suggests that he doesn't accept original public *meaning* as his touchstone, but rather original expected or intended *application*. The word "understanding" is vague and malleable enough that it could reasonably be held to apply to, or be determined by, patterns of original word application, and it is only in this sense, then, that Justice Thomas would be a consistent originalist. But to decide cases based on *this* understanding of OPU would be really pretty nuts. If the Constitution said that persons carrying contagious diseases should be quarantined, Justice Thomas's method of interpretation would require him to hold that the quarantining of persons with psoriasis is constitutional. Bottom line: If Justice Thomas accepts original public meaning as his touchstone, his decisions are inconsistent with his interpretive method. But if Justice Thomas accepts original public application as his touchstone, then he is obviously mistaken. I just don't know what Randy Barnett and the others were thinking.