Justice Thomas: Twenty-Five Years on the Supreme Court
2016 marked the twenty-fifth anniversary of Justice Clarence Thomas’s appointment to the Supreme Court. This Collection offers a series of reflections on Justice Thomas's tenure on the Court and his impact on the law.
Justice Thomas, Criminal Justice, and Originalism’s Legitimacy
After a quarter of a century on the Supreme Court, Justice Clarence Thomas’s jurisprudence in the field of criminal law offers no shortage of themes to discuss, but it especially shows how he has advanced originalism as a respected methodology. Often both the political and academic commentary about originalism focuses on Justice Antonin Scalia. In the wake of his death a year ago, that focus has been understandable. Justice Scalia left a tremendous legacy. His scholarly output, outsized personality, and zealous advocacy on behalf of originalism have bestowed great benefits on our legal culture by focusing the attention of judges and attorneys toward neutral principles and away from subjective policy preferences. But if Justice Scalia bore significant responsibility for advancing the popular understanding of originalism, then Justice Thomas deserves singular credit for strengthening the case for its legitimacy.
At the Front of the Train: Justice Thomas Reexamines the Administrative State
In his quarter-century as an Associate Justice, Clarence Thomas has been the most originalist, and arguably the most original, thinker on the Supreme Court. In the October 2014 Term, Justice Thomas set his sights on the administrative state. In five separate writings, Justice Thomas laid out an originalist understanding of the judicial and legislative powers that called for a reexamination of several strands of the Supreme Court’s administrative law jurisprudence. And he chastised the Court for “straying further and further from the Constitution without so much as pausing to ask why." In this Essay, I explore why Justice Thomas may have chosen the October 2014 Term to focus closely on the administrative state and what impact his opinions might have going forward.
A Humble Justice
Justice Thomas’s criminal law opinions have provoked acerbic commentary in the press and academic writing. The depiction of Justice Thomas’s opinions as intentionally cruel is a mistake. It creates an inexplicable divide between the Justice in person, whom many know to be humble and compassionate, and the Justice on paper, who is held to be callous and cruel. The judicial humility this Essay seeks to reveal in Justice Thomas’s work has five core features: first, an insistence on reaching and pronouncing the correct interpretation of the law even when one disagrees with the result; second, persistence in the correct interpretation despite potential or actual backlash; third, a recognition of one’s own limitations and a resulting commitment to doctrines and practices that subordinate self to law; fourth, a willingness to admit mistakes; and finally, a foundation in faith.
How Justice Thomas Determines the Original Meaning of Article II of the Constitution
Justice Thomas has a well-known reputation for striving to decide constitutional issues in accordance with the original meaning of the Constitution. This Essay concerns a specific question about this methodology in cases concerning presidential powers: How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution? The answer to this question has both academic and practical dimensions. The principal academic concerns are whether Justice Thomas’s approach is complete and logical and whether it accords with his approach in other constitutional issues. The answer is practical because it reveals what kinds of arguments and sources persuade Justice Thomas.
“To Help, Not To Hurt”: Justice Thomas’s Equality Canon
In his twenty-five years on the Supreme Court, Justice Clarence Thomas has earned the (sometimes grudging) respect of legal scholars and commentators, including many who disagree with him, for his careful, principled, analytic approach to many areas of law. Race is not among them. Justice Thomas’s opinions reflect, first and foremost, his conviction that the Fourteenth Amendment’s Equal Protection Clause, as properly understood, precludes the government from discriminating against and between people on the basis of race. What distinguishes his racial equality opinions, making them both compelling and controversial, is that he also explains why he believes that race-based government policies are not only unconstitutional, but also unwise, unjust, and harmful to their intended beneficiaries. Our approach is descriptive: we seek to explain his views on race using his own words and drawing upon his life experiences.
No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess, and the Vagueness Doctrine
Time and again, we have seen that neither precedent nor a perceived need to achieve consensus on the Court can hold Justice Clarence Thomas back from pronouncing what he has found to be the best understanding of the Constitution and federal statutes. His decisions scrape away at what Ralph Rossum has called the “excrescence” of flawed precedent, no matter how deeply entrenched. He looks beyond the entrenchment to the Constitution and history. Not surprisingly, his administrative law decisions and his decisions directly interpreting the Constitution receive the most attention. But the Justice’s deep commitment to not only thinking, but rethinking is also on display in the more prosaic criminal-law opinions I will discuss.