A fascinating portrait of a modern jurist

The New Yorker has published a long and very interesting study of Justice Clarence Thomas of the US Supreme Court. Here's a brief series of extracts.

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

. . .

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

. . .

From the moment Thomas arrived on the Court, he has been a committed originalist; he believes the Constitution should be interpreted as the words were understood by the men who wrote it. “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning,” Thomas wrote in an opinion from 2005.

. . .

Early in the New Deal, the Supreme Court struck down several of President Roosevelt’s signature initiatives as violating the Commerce Clause of the Constitution. If the law did not directly affect commerce “among the several states,” in the words of Article I, the Nine Old Men on the Court said that Congress had no right to pass it. F.D.R. responded to these setbacks with his infamous court-packing plan, but a change of heart by Justice Owen J. Roberts in 1937, followed by Roosevelt’s own appointments to the Court, transformed the understanding of that provision. In a series of cases, the Justices gave Congress essentially unlimited power to regulate the national economy. In Wickard v. Filburn, from 1942, the Court said that the federal government could regulate the amount of wheat grown on a farm, even if none of the wheat was sold across state lines, or even if no wheat was sold at all. Because the production of wheat, taken in aggregate, did affect interstate commerce, the regulation was permissible. With that, the issue of the Commerce Clause more or less vanished from the Supreme Court’s docket for decades—until Thomas and the Tea Party brought it back to life.

In 1995, the Supreme Court, in an opinion by Chief Justice William H. Rehnquist, did finally strike down another law as violating the Commerce Clause. In United States v. Lopez, the Court rejected a federal law that made it a crime to possess a gun near a school. Rehnquist’s opinion said, in essence, that possession of a gun in or near a school was so completely remote from the national economy that Congress had no right to prohibit it.

Thomas agreed — and then some. In a concurring opinion, he said, “I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence.” Even Rehnquist had acknowledged the long line of cases that said the Commerce Clause was satisfied if the activity in question “substantially affects” interstate commerce. In a characteristically lengthy and detailed opinion, Thomas said that the early New Deal Court — the Nine Old Men — was right, and all the Justices over the following six decades were wrong. Thomas wrote, “From the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause.” By Thomas’s reading, Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional. “Justices can be influential by indicating to lawyers the boundaries of what’s possible,” Eugene Volokh, a professor at U.C.L.A. School of Law and a widely read blogger, said. “There is conventional wisdom about what’s possible, like ‘Whatever you think about the Commerce Clause, no one is going to go back to the pre-1937 approach,’ or ‘The Second Amendment is a closed issue.’ Thomas has shown that sometimes the conventional wisdom is wrong.”

There's much more at the link. It's a fascinating look at a man who's regarded by many as a seminal figure in modern US jurisprudence. Highly recommended.

Another long essay by Walter Russell Mead analyzes the New Yorker's article, and provides more food for thought. Here's a sample.

Thomas is not a fundamentalist reading the Constitution au pied de la lettre; the original intent of the founders can be established only after research and reflection. The Eighth Amendment ban on “cruel and unusual punishment” can only be understood if one understands the thought of the period, the types of punishment then widely used, and the political and cultural traditions that shaped the thinking of the founders on questions of justice and punishment. One then takes that understanding, however tentative, and applies it to the circumstances of a given case today.

It is not the only possible way to read the Constitution, but it is a very interesting one and it may be the only politically sustainable way for the Court to read it in a contentious and divided country. Without some rule of interpretation that the average person can understand and accept as legitimate, the Court gradually loses legitimacy in the public eye. The originalist interpretation, whatever objections can be made to it intellectually and historically, is politically compelling. It resonates with the American propensity for commonsense reasoning. To say that the Founders meant what they meant and that the first job of a judge is to be faithful to their intent is something that strikes many Americans as sensible, practical and fair.

As Toobin tells the story, the revival of the Second Amendment was the first great triumph of the new approach. Thomas and others assembled a mountain of evidence that convinced increasing numbers of legal scholars that the Second Amendment must be read as conferring an individual right to bear arms — not merely a generic endorsement of the right of each state to maintain a militia. More, this right was intended as political: to check the power of the state to overawe and crush the people. As a result, the once seemingly unstoppable movement toward gun control has gone into reverse gear.

The startling possibility now beginning to dawn on some observers is that these same methods applied to the Tenth Amendment would lead to a much more far reaching revision to constitutional doctrine. The text of the Amendment is simple and short:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The standard interpretation is that this merely restates an assumption that undergirds the Constitution as a whole and so has no special meaning or significance in law. If reading the rest of the Constitution leads you to uphold some act or law as constitutional, this amendment would not affect that judgment. Therefore it can be and usually is ignored. That is certainly what we were told to do with it in the hallowed halls of Pundit High.

But there is another view of this amendment. The Constitution of the United States confers specific, “enumerated” powers on the Congress, and many of the things that Congress does today are not listed among those enumerated powers. On his last day in office, President James Madison vetoed what today we would call an infrastructure bill. He thought the bill was a good idea, that the country needed the infrastructure and that the federal government was the right agency to provide it, but believed that the Constitution he had helped write provided no authority for Congress to act in this way. If Congress wanted to support infrastructure in the various states, the right way to proceed was to get an infrastructure amendment into the Constitution. Barring that, nothing could be done.

Taken seriously today, that approach to the Constitution would change the way Washington does business. Radically. The list of enumerated powers is short and does not include, for example, health care, education, agricultural subsidies, assistance to the hungry or old age pensions. Most of the New Deal and Great Society (with the interesting exception of civil rights laws which enforce the Civil War era amendments) would be struck down. Whole cabinet departments would close.

The federal government would not wither away completely; even on a narrow reading of the commerce clause (the clause that places the regulation of interstate commerce among Congress’ enumerated powers), Washington would exercise considerable authority over the national economy. But the balance between the states and the feds would change, and among other things, our federal tax burdens would fall, but the costs of state government would rise.

This is pretty much a Tea Party wish list, and it is why the Tea Party movement is so strongly identified with originalist interpretations of the Constitution. Unleashing the Tenth Amendment would move the constitutional status quo back towards the early 1930s when the “Nine Old Men” struck down one New Deal law after another. For Toobin and most New Yorker readers, it is hard to imagine an idea that more radically and totally runs against everything they believe.

Again, more at the link, and also highly recommended.

For anyone interested in current US jurisprudence and the Constitutional implications of much of President Obama's program, these two articles are indispensable reading.

Peter