By John Yoo, The Wall Street Journal
This weekend marks the 20th anniversary of Clarence Thomas’s appointment to the Supreme Court. In his first two decades on the bench, Justice Thomas has established himself as the original Constitution’s greatest defender against elite efforts at social engineering. His stances for limited government and individual freedom make him the left’s lightning rod and the tea party’s intellectual godfather. And he is only halfway through the 40 years he may sit on the high court.
Justice Thomas’s two decades on the bench show the simple power of ideas over the pettiness of our politics. Media and academic elites have spent the last 20 years trying to marginalize him by drawing a portrait of a man stung by his confirmation, angry at his rejection by the civil rights community, and a blind follower of fellow conservatives. But Justice Thomas has broken through this partisan fog to convince the court to adopt many of his positions, and to become a beacon to the grass-roots movement to restrain government spending and reduce the size of the welfare state.
Clarence Thomas set the table for the tea party by making originalism fashionable again. Many appointees to the court enjoy its role as arbiter of society’s most divisive questions—race, abortion, religion, gay rights and national security—and show little desire to control their own power. Antonin Scalia, at best, thinks interpreting the Constitution based on its original meaning is “the lesser evil,” as he wrote in a 1989 law journal article, because it prevents judges from pursuing their own personal policies. Justice Thomas, however, thinks that the meaning of the Constitution held at its ratification binds the United States as a political community, and that decades of precedent must be scraped off the original Constitution like barnacles on a ship’s hull.
In United States v. Lopez (1995), which held unconstitutional a federal law banning guns in school zones as beyond Congress’s powers, Justice Thomas called on the court to reverse decades of case law that had transformed the legislature’s authority “[t]o regulate Commerce . . . among the several States” into what he described as a limitless “police power.” He would restrict federal laws to commercial activity that crosses state borders and end national control over manufacturing and agriculture.
Any case that allows Congress to regulate anything that has “a substantial effect” on interstate commerce “is but an innovation of the 20th century,” wrote Justice Thomas in a concurring opinion. Taken to its conclusion, his view would drive a stake into the heart of the New Deal state, which would have to return policy over welfare, health care, education, labor and crime to the states where they belong. Tea partiers who oppose wasteful federal spending and want a smaller national government are following in Justice Thomas’s intellectual footsteps.
Strictly obeying the original meaning of the Constitution can lead Justice Thomas to liberal results. Based on his reading of the Commerce Clause, for example, he unsuccessfully urged his brethren to strike down most of the federal drug laws—which made him an unlikely hero in my hometown of Berkeley, Calif., if only for a day. He joined a majority to invalidate thousands of criminal sentences because judges, instead of juries, had found the vital facts—in violation of the Bill of Rights.
Justice Thomas opposed the court’s pro-business decisions that capped punitive damages because he believes the issue is for the state courts to decide. He voted to suppress evidence produced by police using thermal-imaging technology to scan homes for marijuana growth as unreasonable searches in violation of the Fourth Amendment. Because the Framers wanted broad protections for political speech, Justice Thomas joined opinions protecting violent movies and offensive protesters at military funerals.
Originalism no doubt gives Justice Thomas strong conservative views on constitutional law. He called for an individual right to own guns before it was cool; he would return control over abortion to the states; and he allows for more religion in the public square—but only because the Constitution entrenches a vision of limited government, broad economic and political freedoms, and a vibrant civil society.
Justice Thomas supplements the Constitution’s inherently conservative nature with a perspective that only someone with his unique background offers. His self-reliant rise from poverty gives him a deep skepticism of social engineering by intellectual elites.
Not surprisingly, Justice Thomas reserves his deepest scorn for the government’s use of race to determine society’s winners and losers. In his dissent from the court’s approval of affirmative action in higher education in Grutter v. Bollinger (2003), he quoted Frederick Douglass: “If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!” Justice Thomas has declared himself on the side of individual effort and choice against elite visions of social justice: “Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”
In Adarand v. Pena (1995), striking down racial quotas in government contracting, Justice Thomas traced the nation’s commitment to racial equality through the Constitution directly to the Declaration of Independence’s promise that all men are created equal, just as did Abraham Lincoln. Affirmative action is “racial paternalism,” he wrote, whose “unintended consequences can be as poisonous and pernicious as any other form of discrimination.”
There is a price for Clarence Thomas’s 20 years of purity of principle and clarity of expression. He will never be the builder of coalitions, the leader of majorities, or the rudderless vote swinging in the middle. He rejects Justice William Brennan’s famous description of the most important rule on the Supreme Court: the rule of five votes. He happily forswears the siren song of political popularity and judicial compromise necessary to sit in the majority.
Instead, he is swinging for the fences. The true audience for his call for a return to Founding principles is the American people, not a few federal judges.
In his first two decades, not only has the court steadily moved in his direction, but also an unprecedented grass-roots movement has taken up his call for limited government and individual freedom. Imagine what he will do in the next 20 years.