Public life is often characterized by people who are fearless. Many of these people don’t live up the myth. They are rare. The fearless ones don’t advertise their courage, they let their actions speak for themselves. They are very rare. Justice Clarence Thomas falls into this category.
Thirty years have passed since his confirmation to the Supreme Court, and he has amassed a record as the court’s staunchest defender of constitutional originalism or interpreting the Constitution according to its original meaning. That distinction is due to his willingness to advocate for constitutional principles even when it meant he was on his own.
His arrival on the court saw originalism still being widely mocked in legal academia. Justice Antonin Scalia was the only exception. Thomas was dismissed by many legal specialists as being a blind follower Scalia’s at the beginning of Thomas’ tenure.
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Years later, it became clear that Thomas had boldly taken positions during a conference of the justices and was willing to stand alone as a dissident. This was how Thomas found himself in the first week of his court tenure. He circulated the solo dissent among his fellow justices, and three more signed it.
One of those justices, Scalia, was persuaded several times during Thomas’ first year to join his junior colleague. Thomas was from the start an influential, independent voice.
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He maintained that voice whether it meant dissenting or issuing a separate opinion from the majority to clarify the Constitution’s original meaning.
In United States v. Lopez (1995) and United States against Morrison (2000), the court struck down brazenly overreaching assertions of Congress’ power to regulate interstate commerce, and Thomas wrote concurring opinions to point out how far the court’s jurisprudence had strayed from the original understanding of the commerce clause. He dissented when the court extended the authority to regulate marijuana grown locally in Gonzales, v. Raich (2006) under the commerce clause.
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Thomas doesn’t care what he thinks about the policy itself. It is the Constitution that matters most. That could mean voting to repeal a law which he regards as good policy or upholding a bad law, or even reducing the sentence of a popular criminal defendant. This is the way a principled judge works.
He is a straight-talking advocate for the Constitution and will argue that any judicial precedents are invalid. He understands that the court’s precedents should not be privileged over the text of the Constitution.
Many of Thomas’ opinions reflect his commitment to the three-part structure of the federal government and the separation of powers. This meant calling on the court to reconsider a series of precedents in 2015 that allowed too much discretion for administrative agencies. These had become an unaccountable fourth branch of government.
The Constitution guarantees individual rights protection.
As the court handed down separation of powers victories in 2020 and again this year, it was clear that Thomas has been a step ahead of the court in identifying what needed to be done to preserve the Constitution’s design that divides government power in order to protect individual rights.
There has never been a more persistent justice in calling for protection of the individual rights guaranteed by the Constitution. In Printz v. United States, he argued that the Second Amendment does not protect an individual’s rights to bear arms. He was even a forerunner of one of the greatest developments in constitutional legal law. It was more than 10 years before Heller v. District of Columbia. (2008) It does. This term, the court will decide New York State Rifle & Pistol Association v. Bruen, a case that presents one of the most significant Second Amendment issues since Heller.
Where the Constitution is silent, Thomas calls out attempts to take issues away from the people, which the court’s abortion jurisprudence flagrantly has done. Thomas is the sitting justice that has called for Roe v. Wade (1973), and Planned Parenthood (1992). He has done that consistently after being a dissenter in Casey, from the court’s consideration of partial-birth abortion statutes in 2000 and 2007 to its decisions on medical regulations designed to protect women from unsafe clinics and abortionists in 2016 and 2020.
Justice Thomas is not only bold but prolific. He has written many more opinions over the years than his coworkers in five years. His ability to anticipate is even more important. Justice Thomas consistently shows foresight by identifying areas in which the court can be more faithful to the Constitution.
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Three new justices were added to the Supreme Court in recent years. This resulted in the court achieving an originalist majority, which was the first in modern memory. The Supreme Court saw its longest-running term in over 50 years, and all major cases were decided without the usual judicial activism.
It is an honor for all who believe in the constitutional government to see Thomas finally get his moment on a bench he can call his own.
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