Fixed like Polaris in continually shifting skies, Supreme Court Justice Clarence Thomas points unwaveringly toward the founders in his approach to constitutional interpretation.
Friday marks the 25th anniversary of the justice’s nomination to the nation’s highest court — a tenure marked by no shortage of public and scholarly scrutiny. Speaking to Justice Thomas’s former clerks and constitutional law analysts, though, one gets the sense that the public and scholarly communities give so much attention to Justice Thomas for drastically different reasons.
One of those clerks, John C. Eastman, who now heads the Claremont Institute’s Center for Constitutional Jurisprudence, compared Justice Thomas’ jurisprudence to a guide who lights lanterns down intellectual paths unknown — or, at least, long forgotten.
“I call it laying down markers for future litigation — invitations to the legal profession and the legal academy to start re-exploring issues that we had forgotten about,” Mr. Eastman said.
That guidelike quality is captured, in part, by Justice Thomas’ habit of writing stand-alone concurring and dissenting opinions from the bench, refusing to compromise on principle in order to attain the late Justice William Brennan’s “law of five.”
Over the past three terms, no justice has written more concurring opinions or dissents than Justice Thomas — patiently planting seeds that, though they had no immediate impact, may eventually flower by the strength of their reason.
Several of those lonely opinions have come to set the precedent on significant constitutional issues, perhaps most notably concerning the Second Amendment and the right to bear arms.
In his concurrence in the 1997 case Printz v. United States, which held that Congress could not use the Necessary and Proper Clause to regulate handgun purchases, Justice Thomas forcefully laid the groundwork for an individual right to gun ownership.
“The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress’s regulatory authority,” Justice Thomas wrote in Printz. “The First Amendment, for example, is fittingly celebrated for preventing Congress from ’prohibiting the free exercise’ of religion or ’abridging the freedom of speech.’ The Second Amendment similarly appears to contain an express limitation on the government’s authority.
“As the parties did not raise this argument, however, we need not consider it here,” he continued. “Perhaps, at some future date, this court will have the opportunity to determine whether the right to bear arms ’has justly been considered, as the palladium of the liberties of a republic.’”
More than a decade later, in a pair of landmark decisions, District of Columbia v. Heller and McDonald v. Chicago, the court affirmed Justice Thomas’ reading of the Second Amendment.
“The Second Amendment cases of Heller and McDonald arrive because of a short concurring opinion in Printz v. United States, saying we’ve been for too long overlooking the individual rights aspect of the Second Amendment,” Mr. Eastman said. “Well, lo and behold, there’s a whole branch of scholarship and litigation that flows from his invitation.”
Justice Thomas also has laid the groundwork for the court to overturn governmental race preferences, such as with regard to affirmative action, and to challenge the constitutionality of the administrative state.
The principled approach to the Constitution has no doubt cost Justice Thomas personal influence on the court. Although he has authored more opinions than any other justice over the past three years, few of those have been majority opinions on the most pressing issues of the day.
John Yoo, a law professor at the University of California, Berkeley, who clerked under Justice Thomas, said the jurist’s “fidelity to the original meaning of the Constitution results in not getting to write a lot of majority opinions for the court.”
“The more a justice has fidelity to principle, the less they are going to be that fifth justice in the middle who is like a weather vane,” Mr. Yoo said, adding that, if there is an instrument guided by the wind perched atop the courthouse, it is Justice Anthony M. Kennedy.
The humility with which Justice Thomas approaches the Constitution is emblematic of his character, Mr. Yoo said. He pointed to the associate justice’s penchant for spending his summers traveling the country in an RV rather than joining his colleagues on posh vacations to Europe.
“One thing that most people don’t know about him is that he spends his vacations not doing what other justices do, like jutting off to Salzburg, Austria. I don’t know why they go there, but it can’t be for the food or the scenery of the people — but they go, nevertheless, every year,” Mr. Yoo said. “Or Aspen, Colorado, hanging around the self-appointed elites in our country. You know what he does over the summer? He drives around the country in a big RV.
“He’s a regular guy, regular American,” he said. “He likes to get out and drive around and look at and meet regular America.”
Mr. Eastman recalled a story in which Justice Thomas dedicated the Donald P. Kennedy Law School building at Chapman University.
Although there was no shortage of glitzy dinners and VIP cocktail parties, Justice Thomas, who grew up in poverty and was raised by his grandparents in the Deep South, spent as much time talking with the service staff as he did hobnobbing with elites.
“Just by his own actions, outside of public view, outside of camera’s eye, meeting with ordinary people and taking them seriously, their life goals and concerns seriously, and talking to them genuinely, person to person, revealed more about his understanding of the equality principle of the Declaration of Independence than anything you could write,” Mr. Eastman said. “It was really extraordinary.”
Mr. Eastman said the Thomas clerks are like a tight-knit family — in no small part because of the efforts of the jurist’s wife, Ginni.
“He and Ginni really take each of the clerks under their wings as if they’re their kids,” he said. “You become part of the family. It doesn’t end in June when the term ends. It stays in place.”
With the death of his longtime colleague and friend Antonin Scalia, and the direction of the court mired in uncertainty by a tumultuous presidential race, perhaps Justice Thomas’ most significant years defending the Constitution are yet to come.
Conservatives probably wouldn’t mind Justice Thomas lighting the way for 25 years more. A term celestial in its length would be fitting, indeed, for the Constitution’s lodestar.
• Bradford Richardson can be reached at brichardson@washingtontimes.com.
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