Saturday, September 03, 2011

Clarence Thomas: The Stealth Justice

During the Justice Thomas nomination hearings one of the things I noted was Judge Thomas said his main legal interests were business regulation and constitional jurisprudence. He would rather have been appointed to a business regulation position in the first Bush administration than an agency Civil Rights Counsel. The Senate confirmed a nominee with a publicly stated interest in business regulation while barely asking him a question on the subject and slightly more on constitional  jurisprudence. Strange priorities by the committee.  I suspect that if he had been asked questions and answered the them as written in his later decisions, he might have lost some conserative support and maybe the four vote margin by which he was confirmed.  Making him the Stealth Justice, these may well be the areas he has the most influnce on the future of American Jurisprudence. 
Justice Thomas’ opening statement to Senate committee on the Anita Hill allegations. 10 minutes but worth watching.

Jeffery Toobin writing in the The New Yorker looks at the role of Justice Thomas on the Supreme Court.  Partners: Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan?  While he does not agree with Justice Thomas on many levels this is a fair and balanced survey and he intends it as a warning to other liberals.

Walter Russell Mead gives us a succinct summary (New Blue Nightmare: Clarence Thomas and the Amendment of Doom) of the lenghty article and the implications’ for the Supreme Court.

Jeffrey Toobin’s gripping, must-read profile of Clarence and Virginia Thomas in the New Yorker gives readers new insight into what Sauron must have felt: Toobin argues that the only Black man in public life that liberals could safely mock and despise may be on the point of bringing the Blue Empire down.

In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.


There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill’s testimony at his confirmation hearings. Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher. Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.


Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved in his lonely trek across the wastes of Mordor. And what he finds is that Thomas has been pioneering the techniques and the ideas that could not only lead to the court rejecting all or part of President Obama’s health legislation; the ideas and strategies Thomas has developed could conceivably topple the constitutionality of the post New Deal state.

Justice Thomas’ influence is summarized in three areas.

In the case of the Second Amendment, the collapse has already come. Back in my Pundit High days, anyone who dared to suggest that the Bill of Rights gave individuals the right to bear arms would have been laughed out of the class as an ignorant yahoo. These days, that is the accepted view of the US Supreme Court and most of the legal profession.


The next topic for Constitutional revisionism is the expansive reading of the commerce clause that the New Deal judges used to justify the Roosevelt administration’s ambitious economic programs.  Especially relevant to the President's Health Care (sic) initiative.


The real problem will come if Thomas can figure out how to get the Tenth Amendment back into constitutional thought in a serious way.

His method seems to be avoiding the usual give and take of the Court and to write dissents or concurrences that present a well researched and argued rational that is very different different from the Courts decision.  Some trial and appellate judges seem have found these more relevant for later cases than the Courts decision.  A stealth stratagy that could have impact for decades after he leaves the court.

I have always thought that Justice Thomas, like him or not, was vastly under rated.  I would encourage you to read the articles, not just to learn about Justice Thomas but some of the key legal issues that will come before the Supreme Court.

Updated 4 Sept 2011


LFC said...

I read some of the Mead post and stopped at the point when he said that originalism is politically compelling. (I doubt that was precisely Toobin's line in the New Yorker article, though I haven't read it.) A bit more on Thomas at my own blog in the comments.

hank_F_M said...


Thanks for commenting.

I did not think you woould agree with any thing that Justice Thamos supports, but think they are worthwile looks at a justice who gets little attention.

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