To achieve reform, it will not work simply to stuff in courses that come out of the English department’s current offerings and call it a day.
Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil.
Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang, among others. Court observers often focus first on the justices’ differences on how best to temper originalist interpretive methods with the prudential limits of stare decisis (differences that Thomas himself thinks are exaggerated). But much more important are the differences in the justices’ basic senses of the Constitution—specifically, Thomas’s sense that it embodies fundamental principles of natural law pronounced by the Declaration of Independence and vindicated by Lincoln in the Civil War.
Even that does not do full justice to Thomas’s distinctiveness. For perhaps the most important difference is not just in the way they approach the Constitution, but also in how they bring the Constitution to the public. To Justice Scalia, constitutional argument is “lawyers’ work.” To Justice Thomas, it is—always has been—something quite different.
Before delving into Thomas’s and Scalia’s fundamental differences, one must pause to relish the irony that the Left so casually assumed, two decades ago, that the newly appointed Thomas would follow Scalia in all things. That’s no exaggeration. The Washington Post’s Mary McGrory asserted in 1992: “Thomas has come on as Scalia’s puppet.” Linda Greenhouse, of the New York Times, was gentler, but no less prejudiced, when she called Scalia Thomas’s “apparent mentor.” Newsweek trafficked in outright conspiracy theory: “Not only is Scalia an aggressive and articulate proselytizer but one of his former law clerks now works for Thomas. The clerk, Newsweek has learned, exerts considerable influence over the rookie justice.” All told, the conventional wisdom was best reflected by an ACLU official, who complained that “Thomas and Scalia are one person with two votes.”
Thomas’s prejudiced critics were not just wrong—they got things precisely backward. From the very beginning, his iconoclasm inspired Scalia to change some of his own votes. In Supreme Conflict (2007), Jan Crawford described how the newly appointed Thomas not only charted his own path, but also convinced Scalia and other justices to change their minds and follow his lead. “After Thomas’s very first conference,” Crawford writes, “Scalia changed his mind” in Foucha v. Louisiana, a controversial civil-detention case, and “on several other occasions that term.” Chief Justice Rehnquist and Justice Kennedy also changed their minds, persuaded by the rookie justice in Foucha. “But,” Crawford adds, “these maneuvers were unknown to outsiders and Court watchers.”
Higher Law and Inkblots
Justice Thomas’s most significant contribution to constitutional law goes to first principles—namely, the first principles underlying the American nation. According to Thomas (and as Rossum explains in his essay, and in his book), the fundamental principles of natural law set forth in the Declaration of Independence breathe life into the Constitution’s structures and procedures, and find protection in the Bill of Rights.
In reviewing Rossum’s book, Matthew Franck recently put it well:
Alone on the modern Court, Justice Thomas is known to cite the Declaration as a source of legal principle in the decision of cases. For him, the foundation of all our law lies in the self-evident truths of the Declaration, beginning with human equality. His conviction that the Fourteenth Amendment was meant to make good on that truth accounts for his persistent invocation of Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), the proposition that the law of the land must be color-blind.
Thomas’s unflinching embrace of natural law was evident from the very beginning—not just in his Supreme Court opinions, or even at his confirmation hearing, but in the speeches that brought him to prominence as chairman of the Equal Employment Opportunity Commission.
Addressing the Heritage Foundation in 1987, then-EEOC Chairman Thomas criticized “the post-Reagan Republican Party” for lacking a principled message that would attract black Americans. Specifically, he challenged conservatives to “begin the search for standards and principles with the self-evident truths of the Declaration,” urging that “we must attempt to recover the moral horizons of [Abraham Lincoln’s] speeches. . . . Without such a notion of natural law, the entire American political tradition, from Washington to Lincoln, from Jefferson to Martin Luther King, would be unintelligible.”
Over the next year, Chairman Thomas went still further, tying those political themes to expressly constitutional ones. In a 1987 article entitled “Toward a ‘Plain Reading’ of the Constitution—The Declaration of Independence in Constitutional Interpretation,” Thomas wrote that “the first principles of equality and liberty should inspire our political and constitutional thinking,” and that such “principled jurisprudence” would “pose a major alternative to the cynical rejection of ‘the laws of nature and of nature’s God’ from jurisprudence.”
In that essay, Thomas applauded Attorney General Meese for stressing the importance of constitutional checks and balances, but he added an important distinction: Where Meese cited Madison’s Federalist 51 for the proposition that “good intentions were to be replaced by good institutions,” Thomas stressed that “the problem is not replacing good intentions with good institutions, but rather having good institutions that protect and reinforce good intentions.” He further noted, “while appearing a fine point, in fact it is crucial for the way we view the Constitution and the influence the Constitution ought to have today.”
Then, at the Federalist Society’s 1988 national symposium, Chairman Thomas tied the Declaration’s natural law principles to the Fourteenth Amendment’s “privileges or immunities” clause. And in so doing, he challenged the then-dominant view among conservatives that the courts should not enforce rights not specifically protected by the Constitution:
The expression of unenumerated rights today makes conservatives nervous, while at the same time gladdening the hearts of liberals. I would like to take a different approach . . . The best defense of limited government, of the separation of powers, and of the judicial restraint that flows from the commitment of limited government, is the higher law political philosophy of the Founding Fathers. Contrary to the worst fears of my conservative allies, such a view is far from being a license for unlimited government and a roving judiciary. . . . The higher-law background of the American Constitution, whether explicitly invoked or not, provides the only firm basis for a just, wise, and constitutional decision.
Thomas was unflinchingly challenging conservative standard-bearers. Raoul Berger, the proto-originalist, had urged in 1980 that judicial enforcement of broad notions of liberty “would transform the ninth amendment into a bottomless well in which the judiciary can dip for the formation of undreamed of ‘rights’ in their limitless discretion, a possibility the Founders would have rejected out of hand.” In the mid-1980s, when Attorney General Edwin Meese introduced early notions of originalism into the political arena through a series of speeches, he presented it largely as a means of judicial restraint, a way to minimize judicial creation and the imposition of constitutional norms not clearly stated in the Constitution’s enumerated rights.
Robert Bork had famously argued in his 1987 confirmation hearing that the Ninth Amendment’s seemingly tautological reference to unenumerated rights was akin to “an ink blot” that obscures the amendment’s true meaning. Later, when Bork wrote originalism’s seminal text, The Tempting of America, he further extended the “inkblot” metaphor to the Fourteenth Amendment’s privileges or immunities clause: “That clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter.”
Likewise Justice Scalia, in A Matter of Interpretation, would pour cold water upon suggestions that the Declaration’s fundamental principles are embodied by the Constitution:
If you want aspirations, you can read the Declaration of Independence, with its pronouncement that “all men are created equal” with “unalienable rights” that include “Life, Liberty and the pursuit of Happiness.” Or you can read the French Declaration of the Rights of Man and of the Citizen . . . There is no such philosophizing in our Constitution, which, unlike the Declaration of Independence and the Declaration of the Rights of Man, is a practical and pragmatic charter of government.
On the bench, this fundamental difference between Thomas and Scalia is clearest in their discussions of the Fourteenth Amendment’s privileges or immunities clause. In McDonald v. City of Chicago, the second of the Court’s recent gun-rights cases, Thomas’s concurring opinion (for himself alone) not only set forth a thorough defense of the clause’s protection of enumerated constitutional rights against state infringement, but also opened the door to judicial protection of constitutional rights not expressly specified within the general protection of the Fourteenth Amendment’s privileges or immunities clause:
The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application. The Constitution contains many provisions that require an examination of more than just constitutional text to determine whether a particular act is within Congress’ power or is otherwise prohibited. … To be sure, interpreting the Privileges or Immunities Clause may produce hard questions. But they will have the advantage of being questions the Constitution asks us to answer.
To be clear, this is not to say that Thomas has always “out-libertyed” Scalia. Their respective opinions in a Guantanamo-detention case, Hamdi v. Rumsfeld, are instructive: Justice Scalia denounced the suggestion that an American citizen could be subjected to military detention and trial without the protection of the writ of habeas corpus in federal court; according to Scalia, common-law rights embodied by the Constitution’s protections of due process and habeas corpus required the government to bring the American detainee to court, to review the legality of his detention. Justice Thomas, by contrast, focused on the Executive Branch’s powers more than on notions of liberty, finding that “this detention falls squarely within the Federal Government’s war powers, and we [i.e., the courts] lack the expertise and capacity to second-guess that decision.”
But these are relatively rare exceptions. By and large, Thomas’s vision of judicially enforceable constitutional liberty appears to be much more expansive than Scalia’s.
Lawyers’ Work and Political Struggle
Thomas’s sharp break from his originalist predecessors reflects the fundamental difference in their ideological roots. Scalia, Bork, Meese, Berger, and others were reacting to liberal justices’ and judges’ dramatic expansion of rights—and the concomitant restrictions on state legislative power—under the Warren and Burger Courts. That generation of originalists came to the battle primarily from legal academia.
Thomas’s own political and judicial instincts, by contrast, are rooted in the segregated South, as he explained in his 1987 Heritage address (and would later in his memoir, My Grandfather’s Son). “I grew up under state-enforced segregation,” he said, “which is as close to totalitarianism as I would like to get.” He urged conservatives to “recover the moral horizons” of the Declaration’s fundamental principles, which “had been an integral part of the American political tradition,” but which had been obscured in recent decades. With one prominent exception, that is: “Martin Luther King was the last prominent American political figure to appeal to it.”
Crucially, Thomas’s and Scalia’s disparate ideological roots affect more than the justices’ respective interpretations of the Constitutional text. The differences in their ideological roots produce fundamentally distinct approaches to constitutional argument. A quintessential Scalia opinion, while energized with rhetoric, is a scholarly enterprise—as in his interpretation of the Second Amendment, in DC v. Heller, analyzing historical sources and considering, at length, the relative importance of the amendment’s “prefatory clause.”
A quintessential Thomas opinion, while assuredly scholarly, goes to bedrock political principles (in the nonpartisan sense). For example, he opens his concurrence in Grutter, on affirmative action, with Frederick Douglass’s plea:
What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us!
To see the difference in their instincts, look no further than their books. Antonin Scalia wrote A Matter of Interpretation and Reading Law: The Interpretation of Legal Texts. Clarence Thomas wrote My Grandfather’s Son.
Justice Scalia conceives constitutional argument as “lawyers work,” a phrase that pops up often in his speeches. Justice Thomas instead stresses the fundamentally political nature of constitutional law. As he said in his 1988 Federalist Society address:
In defending these rights, conservatives need to realize that their audience is not one composed of simply lawyers. Our struggle, as conservatives and political actors, is not simply another litigation piece or technique. This is a political struggle, calling for us to use not only the most just and wise of arguments, but the most noble as well. Ronald Reagan did not move this nation by arguing as a lawyer would, nor did Abraham Lincoln, though the latter was a fine lawyer.
Conservatives should not “argue like lawyers for political causes,” but rather, they must present their case to the public at large, using rhetoric rooted in American first principles. In a footnote to his speech, Thomas quoted the columnist George Will: “When Cicero spoke, listeners said, ‘How well he speaks’; but, when Demosthenes spoke, his listeners said, ‘Let us march!’ Conservatives need to recapture, and multiply, Ronald Reagan’s ability to promote his speakers to march.”
Today, Thomas’s calls for a constitutionalism informed by natural law finds echoes in the work of libertarian lawyers and scholars such as Randy Barnett and Clark Neily (not to mention an increasingly libertarian George Will), who call for “judicial engagement” to enforce rights more aggressively in court than would some of the more traditional originalists, who tend to favor “judicial restraint.” At the same time, Barnett calls for a “popular sovereignty” that directs constitutional argument not just to the courts, but to the public at large. If their promotion of constitutional law infused with fundamental liberty reflects Justice Thomas’s own approach, then it is all the more fitting that they are learning to pursue those aims through the very means that Thomas himself urged a quarter-century ago.