-Ted Lacksonen

On Sat­ur­day, John Yoo pub­lished an edi­to­r­ial cel­e­brat­ing the 20th anniver­sary on Jus­tice Clarence Thomas’s appoint­ment to the Supreme Court. Since I am a strong con­sti­tu­tion­al­ist and lib­er­tar­ian it should come as no sur­prise that I con­sider him to be the finest jurist of the last cen­tury. In reflect­ing on his twenty years on the bench I want to 1) rebut his crit­ics, 2) explain why I clas­sify his jurispru­dence as lib­er­tar­ian, as opposed to con­ser­v­a­tive, and 3) explain why I hold him in such high esteem even though he is an “out­lier” with lit­tle sway on the Court.

Lib­er­als in legal acad­e­mia are among Thomas’s harsh­est crit­ics, in vary­ing terms call­ing him “dumb” or “stu­pid.” In my obser­va­tions, this comes pri­mar­ily from three char­ac­ter­is­tics of his work.

First, Thomas rarely asks ques­tions dur­ing oral argu­ments, which often become question-and-answer ses­sions with the other eight Jus­tices. Crit­ics say Thomas sim­ply isn’t smart enough to think of intel­li­gent ques­tions on the fly. The insult­ing nature of this analy­sis aside, I accept Thomas’s response at face value: he sim­ply wants to hear coun­sel present their full argu­ment before drilling them with questions—something that rarely if ever hap­pens because most oral argu­ments cen­ter around what the Jus­tices want to talk about, not counsel.

Sec­ond, crit­ics deride his clear writ­ing style as evi­dence of a sim­plis­tic mind. Hav­ing read many of his opin­ions, his analy­ses are no less nuanced than other jus­tices; he sim­ply does a bet­ter job of mak­ing them com­pre­hen­si­ble. As a writer I can attest to how dif­fi­cult it can be to  present a com­plex argu­ment in under­stand­able terms. As such, I con­sider his writ­ing to be evi­dence of a keen intellect—after all, he’s writ­ing opin­ions for lower courts to imple­ment and for the cit­i­zenry to adhere to. There is no honor in obfuscation.

Finally, crit­ics mock his straight­for­ward inter­pre­ta­tion of the Con­sti­tu­tion, reserv­ing their praise for jurists who go through men­tal gym­nas­tics to arrive at inter­pre­ta­tions that please lib­eral acad­e­mia. I have lit­tle doubt that Thomas could play clever intel­lec­tual games if he so chose, so in my hum­ble opin­ion the crit­i­cism is rooted in the lib­eral belief that the Con­sti­tu­tion is a shackle that must be shed, and Thomas sim­ply refuses to indulge their desire to rewrite the Con­sti­tu­tion by fiat. In other words, crit­ics don’t like his phi­los­o­phy, and there­fore he must be stupid.

Mov­ing on, as the title to this piece sug­gests, I clas­sify Thomas as a lib­er­tar­ian as opposed to con­ser­v­a­tive as he is usu­ally called. His strict adher­ence to fed­er­al­ist prin­ci­ples and belief in the Con­sti­tu­tion as a restraint on gov­ern­ment could land him in either the lib­er­tar­ian or con­ser­v­a­tive camps, and he is undoubt­edly the most conservative/?libertarian by those mea­sures. For exam­ple, in Gon­za­les v. Raich, Thomas wrote a sting­ing dis­sent when the seven-justice major­ity held that Con­gress has author­ity under the Inter­state Com­merce Clause to reg­u­late home-grown mar­i­juana for per­sonal use. (Inter­est­ingly, the major­ity opin­ion was writ­ten by Scalia.) Thomas wrote:

If the Fed­eral Gov­ern­ment can reg­u­late grow­ing a half-dozen cannabis plants for per­sonal con­sump­tion (not because it is inter­state com­merce, but because it is inex­tri­ca­bly bound up with inter­state com­merce), then Con­gress’ Arti­cle I powers—as expanded by the Nec­es­sary and Proper Clause—have no mean­ing­ful limits.

So to deter­mine whether Thomas is more prop­erly clas­si­fied as lib­er­tar­ian or con­ser­v­a­tive, you have to look at his jurispru­dence in other areas. In gen­eral he tends to be more lib­er­tar­ian. For exam­ple, Thomas would strike down the major­ity of fed­eral drug laws, which would effec­tively end the War on Drugs—long a lib­er­tar­ian cause. He is a vig­or­ous free speech defender, although his dis­sent in Vir­ginia v. Black was an excep­tion (he would have allowed the ban­ning of cross burn­ing because it is not “speech.”) He tends to vote with the lib­eral block in search-and-seizure cases, see­ing more restraints on law enforce­ment than the con­ser­v­a­tive block is com­fort­able with. All of these posi­tions are more con­sis­tent with lib­er­tar­ian thought than conservative.

Whether Thomas is or clas­si­fies him­self as a lib­er­tar­ian is a ques­tion I can­not answer. For exam­ple, he may oppose fed­eral reg­u­la­tion of drugs, but might be a sup­porter of strong drug laws at the state level—which would be decid­edly un-libertarian. Nonethe­less, his Con­sti­tu­tional jurispru­dence, as a whole, is more con­sis­tent with lib­er­tar­ian polit­i­cal phi­los­o­phy than conservative.

That is no small point to make, as too many peo­ple in this coun­try place too much stock in the liberal/?conservative left/?right model with­out real­iz­ing that there are more options out there. For exam­ple, when I spoke with rep­re­sen­ta­tives of the college-based orga­ni­za­tion Stu­dents for Lib­erty, they reported that many col­lege stu­dents don’t like George W. Bush, and there­fore, they assume they are lib­eral because there are only two options, right? For bet­ter or worse, labels matter—which is why it is impor­tant to get them right.

Get­ting to my final point, I hold Thomas in high esteem in spite of the fact that he holds rel­a­tively lit­tle sway on the Court. When I say sway, I mean in indi­vid­ual cases and the short term. Thomas is very often the lone dis­senter. In the long term, how­ever, Thomas most def­i­nitely has influ­enced the Court, as Pro­fes­sor Yoo explains:

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.

Thomas reminds me of another out­lier: Ron Paul. Both have stood firmly by prin­ci­pal in an era of sell­out pol­i­tics and jurispru­dence. Nei­ther wields much short-term influ­ence on the bod­ies where they work. Both have had sig­nif­i­cant influ­ence on the longer-term; Thomas on orig­i­nal­ism, and Paul on a vari­ety of areas, most notably the Fed­eral Reserve. Twenty years ago peo­ple labeled Paul a nut for his anti-Fed rants, and Thomas a square for want­ing to return to strict inter­pre­ta­tion of the Con­sti­tu­tion. Both have moved their ideas from the shad­ows and brought them into every­day conversation.

So, twenty years into Thomas’s tenure, his grow­ing legacy is that of the virtue of stand­ing by prin­ci­pal instead of sac­ri­fic­ing to com­pro­mise. I con­sider his jurispru­dence to be founded on lib­er­tar­ian prin­ci­pals, instead of con­ser­v­a­tive prin­ci­pals as is com­monly believed. Whether you agree is entirely up to you.

Happy Anniver­sary, Jus­tice Thomas, and here’s to another twenty years on the bench. Our coun­try needs you, and thank you for your service.