Justice Thomas keeps the flame
Apr 27, 2006
Review by Dutch Martin
Clarence Thomas is arguably the most controversial United States Supreme Court Associate Justice in modern times. This is not because of his jurisprudence, which strictly interprets the U.S. Constitution based on the original intent of its drafters. It’s not because of the meticulous way in which he relies on the Constitution’s text, context, history, and timeless principles of natural law in examining each Supreme Court case that comes before him. The controversy that surrounds him does not even stem from his gutsy willingness (his respect for stare decisis notwithstanding) to publicly criticize Supreme Court precedent, including the methodology used by the Warren Court in rendering its unanimous decision in Brown vs. Board of Education of Topeka, Kansas (1954).
Associate Justice Clarence Thomas is controversial for mainly one reason: He is a black conservative jurist who sticks to his guns and stands by his convictions. As a result, the vicious character assassination leveled against him by the liberal elites and the civil rights establishment over the past 15 years has spurred another conservative lawyer into action. The result is a must-read: The Keeper of the Flame: The Supreme Court Opinions of Justice Clarence Thomas (1991-2005).
Author Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, examines all 327 opinions – majority, concurring and dissenting – written by Justice Thomas during his 14 complete terms on the High Court. Whereas Scott Douglas Gerber’s First Principles looks at Justice Thomas’s judicial philosophy during only his first five years on the Court and in only three areas (civil rights, civil liberties and federalism), Professor Holzer details Justice Thomas’s jurisprudence regarding a variety of constitutional issues over the past 14 years, such as separation of powers, judicial review, and such Bill of Rights issues as abortion, affirmative action, the death penalty, and the alleged rights of prisoners. As the author puts it, “Thomas’s words unequivocally reflect what he understands to be the appropriate role of a Supreme Court justice, his methodology for proper decision-making, and his position on fundamental constitutional questions…”
To see Professor Holzer’s point, let’s take a look at Justice Thomas’s written opinions in four high-profile cases in recent memory.
Stenberg v. Carhart (2000). In a 5-4 majority, the Supreme Court ruled Nebraska’s ban on “partial-birth” abortion unconstitutional because of its failure to incorporate an exemption for the health of the mother and its “undue burden” on abortion choice. In his dissent, Justice Thomas traced the history of the Supreme Court’s abortion jurisprudence up to Planned Parenthood v. Casey (1992), which he bluntly criticized as being “constructed out of whole cloth” with no constitutional basis whatsoever. After unabashedly describing what the gruesome procedure of “partial-birth” abortion entails (something no sitting federal judge has ever had the guts to do), Thomas examines the appropriate interpretation of the Nebraska statute, which he uses to crush the premise underlying the majority’s decision:
The majority and Justice O’Connor reject the plain language of the statutory definition, refuse to read that definition in light of the statutory reference to “partial birth abortion,” and ignore the doctrine of constitutional avoidance. In doing so, they offer scant statutory analysis of their own.
Zelman v. Simmons-Harris (2002). This case involved the Ohio school voucher program, which opponents contended violated the First Amendment’s Establishment Clause. In his concurring opinion, Thomas masterfully demystifies the confusion surrounding the Establishment Clause of the First Amendment and the Due Process Clause of the Fourteenth.
“[The school voucher program’s opponents] advocate using the Fourteenth Amendment to handcuff the State’s ability to experiment with education. But without education one can hardly exercise the civic, political, and personal freedoms conferred by the Fourteenth Amendment… [S]chool choice programs that involve religious schools appear unconstitutional only to those who would twist the Fourteenth Amendment against itself by expansively incorporating the Establishment Clause. Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in the greatest need.
Grutter v. Bollinger (2003). The question before the Court in this case was whether using race as a factor in student admissions by the University of Michigan Law School was unconstitutional. In a 5-4 majority decision, the Court decided that the school had a “compelling” interest in creating and maintaining a “diverse” student body and since that interest was “narrowly tailored,” using race as an admissions criterion was constitutional. Quoting former-slave-turned-elder-statesman Frederick Douglass, Thomas brutally rebutted the majority’s “compelling interest” rationale in his dissent by showing how it violates the Fourteenth Amendment’s Equal Protection Clause, while in the process revealing the paternalistic thinking behind the majority’s ruling. Then, going for the jugular, Justice Thomas exposed affirmative action for what it really is:
The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch is not restricted to elite institutions… While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less “elite” law school for which they were better prepared. And the [elitists] will never address the real problems facing “underrepresented” minorities, instead continuing their social experiments on other people’s children.
Kelo v. City of New London (2005). Perhaps the most notoriously unpopular Supreme Court decision regarding eminent domain to come down in recent memory, a 5-4 majority voted that the city of New London, Connecticut could seize private residences and turn them over to private developers to generate jobs and tax revenue. Justice Thomas’s dissent, where he rightly looks to the Fifth Amendment, blows the majority’s horrifically flawed rationale (written by Justice Breyer) out of the water.
Defying this understanding, the Court replaces the Public Use Clause with “Public Purpose Clause”… (or perhaps the “Diverse and Always Evolving Needs of Society” Clause…), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational”… This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenues… is for a “public use.” I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution… 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 [emphasis added].
As Professor Holzer observes, “I cannot count the times that people who should know better [i.e. legal scholars and other “learned” people] have, simply upon hearing Clarence Thomas’s name, immediately responded with derogatory comments about his abilities as a justice – even though they have never read a single opinion of the [327] Thomas has written.” I challenge anyone to come away from reading The Keeper of the Flame and continue to view Justice Clarence Thomas as anything but the brilliant, articulate constitutional originalist that he is.
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