Justice Clarence Thomas is the most important legal thinker of his generation, and the most significant judicial appointment of the last forty years.
No justice did more to reshape the way thousands of the nation’s top lawyers think about the law. No justice did more to shape a political movement’s sense of what it can achieve through litigation. If President George H.W. Bush had chosen someone other than Clarence Thomas to sit on the Supreme Court, the world might look vastly different today.
And American democracy would be much safer.
There is a commonly held view that Thomas is an intellectual lightweight. Radical and far-too-quiet on the bench. Idiosyncratic and lacking in influence. A fairly persistent take on Thomas’ career holds that he’s lived in the shadow of Justice Antonin Scalia, and his views were, at most, an exaggerated version of Scalia’s originalism.
This view of Thomas is wrong.
It is true that Thomas had little influence on the men and women he’s served with for years. No other member of the Court joined his opinions suggesting that federal child labor laws and the ban on whites-only lunch counters are unconstitutional — though there’s a very real risk that Neil Gorsuch will be the first. No other justice agrees with Thomas that the First Amendment does not apply to high school students.
But if you’re asking how effectively Thomas helped sway Chief Justice John Roberts or Justice Anthony Kennedy to his own views, you are asking the wrong question. In a series of opinions joined by no other justice, Thomas waged a quiet war of ideas against twentieth century liberalism — and he won the hearts of a legion of conservative law students. Many of those former students are now old enough to be judges.
As of this writing, fully 20 percent of the judges Donald Trump appointed to the federal appellate bench are former Thomas clerks. Thomas lost the war for the present, but he is the future of legal conservatism. And he may soon be America’s future.
To understand just how much Thomas shaped America’s legal debates, it’s helpful to turn the clock back to 1991 — the year Thomas joined the Supreme Court — and then to turn it back a little further, to an age when Thomas’ views were ascendant.
A hundred years ago, the Supreme Court held that federal child labor laws are unconstitutional. Hammer v. Dagenhart rested on a now-discredited distinction between laws that regulate “commerce” — which the Court defined narrowly to include little more than the transit of goods — and other activities such as manufacturing, mining, or agriculture.
Congress could regulate the transit of goods but not the production of them, according to Dagenhart, which is why a ban on child labor could not stand. The ban, according to the justices of another era, “does not regulate transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the States.” That was not allowed.
Dagenhart is now taught in law schools as anticanon — the kind of decision that stands as an example of how judges should never behave. Clarence Thomas thinks this case was correctly decided.
At the time of the framing, Thomas claimed in his concurring opinion in United States v. Lopez, “the term ‘commerce’ was used in contradistinction to productive activities such as manufacturing and agriculture.” It’s a wordy statement that reveals little to readers who aren’t familiar with early twentieth century case law, but it is very much an explicit endorsement of the rule announced in Dagenhart.
Nor would child labor laws be the only casualties in Clarence Thomas’ America. If Congress’ power were limited in the way Thomas describes, bans on employment discrimination would also fall — except maybe in industries such as shipping that involve actual transit of goods across state lines — as would civil rights laws banning whites-only lunch counters. The federal minimum wage, the Americans with Disabilities Act, various laws protecting workers benefits, federal overtime laws, and the Affordable Care Act would all cease to exist.
When Thomas joined the Court in 1991, there was broad consensus that cases like Dagenhart were wrong. Such a broad consensus, in fact, that the case’s defenders were relegated to the fringes of the legal academy.
President Reagan promised to appoint judges who would exercise “judicial restraint.” President George H.W. Bush, who appointed Thomas, said that he would “appoint people to the Federal Bench that will not legislate from the Bench.” No politician in their right mind wanted to be associated with the view that judges should strike down most of the twentieth century.
Nor did legal elites believe, in the years before Thomas’ ascension to the bench, that the judiciary should declare war on the New Deal or the Great Society. In the final year of the Reagan administration, the Justice Department published a set of “Guidelines on Constitutional Litigation,” which laid out the administrations’ preferred way of reading the Constitution and instructed DOJ lawyers to make arguments consistent with this reading.
Yet, as I discuss in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the Reagan administration’s vision for the Constitution was a picture of moderation when compared to Thomas’. The Guidelines did not claim that the minimum wage is unconstitutional, for example, though it did suggest that state governments should be allowed to pay their workers less than the minimum wage. And the Guidelines explicitly endorsed a 1966 Supreme Court decision upholding the Voting Rights Act — the same Voting Rights Act that Thomas voted to gut in 2013.
Thomas, in other words, was a man ahead of his time. He showed a conservative movement, that primarily aspired to weaken the judiciary, that it could have much larger ambitions. He taught them that, if they were determined enough, conservative judges could build a bridge back to the Gilded Age, frogmarch the nation across this bridge, and then burn it behind them. And, while Thomas’ longest-serving colleagues reject this vision, the next generation of conservative judges view it as an inspiration.
Playing the long game
“I’ve given up on the current generation,” Justice Antonin Scalia once told a room of law students. “But the kids in law school, I think there’s still a chance,“ he added. “That’s who I write my dissents for.”
Indeed, Scalia pioneered the art of the punchy, nasty, unforgettable dissent. He introduced the legal world to phrases like “jiggery-pokery” and “pure applesauce.” When the Court struck down a law that effectively criminalized gay sex, Scalia complained that his Court “has largely signed on to the so-called homosexual agenda.” When it reaffirmed the right to have an abortion, Scalia claimed that “the best the Court can do to explain how it is that the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.”
Thomas takes a different approach. While Scalia traded in barbs and insults, Thomas’ opinions read, well, like judicial opinions. Where Scalia appealed to cultural grievances and a sense of victimhood, Thomas writes like he is the picture of reasonableness, simply trying to restore lost truths that his colleagues ignore.
Thomas’ Lopez opinion, the one where he endorses the same legal theory that was once used to strike down child labor laws, begins with a seemingly mild (and rather dubious) claim that “our case law has drifted far from the original understanding of the Commerce Clause.”
Yet, where the two men disagreed, Thomas, and not Scalia, appears to have won the battle for the soul of conservatism.
Consider the question of agency regulation — an extraordinarily important area of the law where Scalia and Thomas had wildly different views for most of the former’s career.
Congress is not an especially nimble body, even when it isn’t completely dysfunctional. It is not possible for a cacophonous body of 535 lawmakers to update America’s environmental laws every time technology changes. Or to constantly update labor laws to account for inflation. Or to keep abreast of the latest vehicle safety innovations. If Congress had to enact a new law every time an industry regulation needed to be tweaked, many coal plants would likely be using the same technology they used in the 1980s.
Which is why the Clean Air Act delegates the task of keeping up on new technological developments to the Environmental Protection Agency. One provision of this law, for example, requires EPA to determine “the best system of emission reduction” that is both cost effective and feasible given existing technology, and to set standards ensuring that certain sources of pollution achieve similar levels of emission reduction. Congress sets the overarching policy — that standards should continually be updated to reflect new innovations — but the EPA implements this policy through a series of regulations.
For most of his time of the bench, Scalia was a staunch defender of this allocation of power. Among other things, he was one of the Court’s most outspoken defenders of Chevron v. Natural Resources Defense Council, a Supreme Court decision holding that courts should typically defer to regulatory agencies when the statute authorizing the agency to regulate is ambiguous.
Thomas, meanwhile, wants to blow up the regulatory state and spit on its ashes. Thomas doesn’t simply want to overrule Chevron, he wrote in 2015 that “generally applicable rules of private conduct” can only be created by an act of Congress and that any decision that “involves an exercise of policy discretion. . . requires an exercise of legislative power.” Under Thomas’ vision, laws like the Clean Air Act simply cannot exist.
Though Scalia’s view of the administrative state largely prevailed while Scalia was on the high Court, Thomas’ view is now ascendant. At the annual meetings of the conservative Federalist Society, the legal group responsible for choosing many of Trump’s judicial nominees, the Society’s leading lights speak of dismantling agency regulation with the kind of obsessiveness normally associated with Humbert Humbert and Captain Ahab.
Neil Gorsuch, who occupies the seat Senate Republicans held open for a year until Trump could fill it, campaigned for his current job by writing concurring opinions embracing Thomas’ skepticism of agency regulations. At least one judge that Trump is reportedly considering for the Court’s current vacancy, Judge Raymond Kethledge, appears to be aping Gorsuch in an effort to catch the White House’s eye.
Indeed, even retiring Justice Kennedy, the last vestige of conservative moderation on the Supreme Court, wrote an opinion attacking Chevron on his way out the door.
The war against the administrative state approaches its final skirmish. Thomas is about to win.
Kneel before Zod
Thomas’ superpower is his ability to reframe life-and-death legal battles as an academic debate about history. By framing Lopez, for example, as a search for “the original understanding of the Commerce Clause,” rather than as a moral defense of striking down child labor laws, Thomas shifts responsibility for his decisions off himself and onto the framers. And he shows other conservatives how they can do the same.
Thomas is able to absolve himself of responsibility, moreover, despite the fact that he is a terrible historian.
Consider Thomas’ dissenting opinion in Brown v. Entertainment Merchants Association.
In Brown, a majority of the Court joined Justice Scalia’s opinion striking down a California law banning the sale of “violent video games” to minors — on the grounds that this law violates the First Amendment. Thomas disagreed, claiming that “the practices and beliefs of the founding generation” did not “include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”
Thomas’ Brown opinion, moreover, built on his concurring opinion in Morse v. Frederick, where he argued that “the First Amendment, as originally understood, does not protect student speech in public schools.”
The justice rooted both opinions in his belief that seventeenth and eighteenth century adults lorded over children like petty tyrants. Thus, Thomas writes in Morse that private school “teachers managed classrooms with an iron hand,” and he writes in Brown that puritan fathers “ruled families with absolute authority.” Thomas cites to centuries-old parenting guides with names like “The Well-Ordered Family” and “A Family Well-Ordered.” He quotes a 1692 text warning that “by hu-mouring and cockering” their children, parents “’poison’d the fountain’ and later ‘taste[d] the bitter waters.’”
All of this is very interesting, but it is unclear why any of it matters. That is, even if Thomas is correct that the founding generation “believed parents to have complete authority over their minor children and expected parents to direct the development of those children,” why does it follow that the founding generation would have let the government restrict children’s speech — especially outside of settings like the classroom where discipline is required?
A 1692 guide on parenting provides no more insight into how the framers understood the First Amendment than a copy of What to Expect When You’re Expecting offers insight into whether Roe v. Wade is correctly decided.
Nevertheless, if you are asking whether Thomas is right or wrong about how the First Amendment was originally understood, you are again asking the wrong question. Originalism — the theory that the Constitution must be read solely through the lens of its original history — has never been a constraint on judicial discretion. And judges who identify as originalists have never been particularly skilled at constructing history.
Justice Hugo Black, a liberal Franklin Roosevelt appointee, used originalist arguments to sweep away attacks on the New Deal and to reinvigorate the Bill of Rights. Justice Scalia used it to counsel judicial restraint in opposition to Roe v. Wade. More radical conservatives like Thomas and Gorsuch use originalism to justify sweeping away the very same legal framework that was built by men like Justice Black.
The genius of Clarence Thomas isn’t that he is a great historian. It is that he knows how to comb the historical record for sources that agree with him. And, once he finds them, he can claim that any precedent he disagrees with is inconsistent with “the original understanding” and must be swept away.
First as tragedy, then as farce
Clarence Thomas is 70-years-old. He’s served on the Court for half of his adult life, and he spent most of that time writing lonely opinions joined by no other justice.
But the times are a changing. Last year, at the Federalist Society’s annual lawyers’ convention, a triumphant Gorsuch addressed an adoring crowd. “Tonight I can report,” the Man Who Is Not Merrick Garland proclaimed to thunderous applause, “a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States.”
Since joining the Court, moreover, Gorsuch tacked to Thomas’ right in an important constitutional case — authoring a love letter to the Gilded Age that not even Thomas would join. In the coming age, Thomas could soon be the Court’s center, and men like Gorsuch could take on Thomas’ traditional role as the radical dissenter.
America has seen this movie before, and it did not end well the first time. One of Abraham Lincoln’s worst decisions as president — an error in judgment rivaled only by Lincoln’s willingness to accept the white supremacist Andrew Johnson as his 1864 running mate — was Lincoln’s appointment of Justice Stephen Johnson Field to the Supreme Court of the United States.
Like Thomas, Field spent much of his long career on the bench writing dissenting opinions and concurrences urging his colleagues to lurch further to the right. Field stood up for price gouging businesses and against farmers. He railed against public health laws. And he labeled a modest income tax on upper-income earners an “assault upon capital” which “will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness.”
Field did not live to see the Supreme Court’s opinions striking down minimum wages, protections for unions and child labor laws, but he did more than anyone in America to lay the groundwork for these decisions.
Thomas also may not live to see his final triumph. And when it does come, it may not be a complete victory. It is unclear that there will ever again be five votes to abolish child labor laws.
But Thomas did something far more important than winning any one legal victory. He taught his fellow conservatives how to dream again. He showed them that there is an alternative to judicial restraint, and made them hunger for a world where conservative principles are imposed on the nation by judicial fiat.
For a quarter century now, young members of the Federalist Society have opened up their Constitutional Law textbooks, read Thomas’ solo dissents, and wondered “why not?” The oldest of these former law students are now in the prime of their careers — ripe for appointment to the federal bench. And there is an entire generation of them waiting for their turn to rule.