Harvard currently faces a lawsuit alleging discrimination against Asian Americans, and the facts reveal the divisiveness of counting by race.
I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.
Antonin Scalia, the Court’s other originalist, is also willing to reject Supreme Court precedents that depart from the constitutional text or the traditional understanding of that text, but, as he once confessed to being a “fainthearted originalist,” he has also confessed to being fainthearted when it comes to overruling precedent. As he told Ken Foskett in an interview as he was researching his book on Thomas: “Thomas frequently writes concurrences and dissents that stake out legal ground far beyond what any of his colleagues will embrace. Indeed, he is the most willing of all of his colleagues to overrule precedent, what is known in legal jargon as stare decisis, or ‘let the decision stand.’ He does not believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right. I wouldn’t do that.”
When Thomas believes that the Court has gotten it wrong, he will go after the most venerable of precedents. In his 1998 concurring opinion in Eastern Enterprises v. Apfel, Thomas indicated his willingness to overturn a 200 year-old precedent, the Court’s 1798 decision in Calder v. Bull that held that the Ex Post Facto Clause of Article I, § 9 applied only to criminal and not civil matters. Thomas indicated that he was writing “separately to emphasize that the Ex Post Facto Clause of the Constitution even more clearly reflects the principle that ‘retrospective laws are, indeed, generally unjust.’” Since Calder v. Bull, however, the Court has considered the Ex Post Facto Clause to apply only in the criminal context. But, he averred, “I have never been convinced of the soundness of this limitation, which in Calder was principally justified because a contrary interpretation would render the Takings Clause unnecessary. In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause.”
Whittington and White are favorably disposed toward Thomas’s willingness to reject precedent; Strang, however, is correct to point out that Thomas does not reject precedent simply but only misguided precedent. Strang rightly distinguishes “originalist precedent” from “nonoriginalist precedent.” He suggests that, when I wrote that Thomas wants to scrap away past precedent because he wants to reveal the Constitution’s nuance and detail by exposing its bare wood, I meant only “nonoriginalist precedent, not originalist precedent.” So far, so good. Thomas would have no interest in rejecting precedent that is consistent with the original general meaning of the Constitution, and so that is a helpful clarification. However, Strang goes further and argues that it is, in fact, “originalist precedent itself that creates the ‘constitutional nuance and detail.’”
With that, I beg to differ. The Constitution’s nuance and detail were not created by judges interpreting the Constitution but rather by the delegates of the Philadelphia Convention who first crafted it and the delegates of the state ratifying conventions who brought in into existence, both using words and phrases that had a contemporary customary meaning. If, as I have argued, “nonoriginalist precedent” is the equivalent of thick paint that obscures the Constitution’s original design, then “originalist precedent” is more akin to fine wax that preserves the original finish while revealing the glory of the Constitution’s craftsmanship.
Thomas’s willingness to reject misguided precedent is paying dividends. Whittington compares Thomas to William Rehnquist, who when Associate Justice, was “frequently the lone dissenter, . . . laying down markers for the future.” Eventually, he notes, Rehnquist’s effort “bore fruit” and allowed him to bring “the Court to him.” Similarly, Strang invokes “the gravitational force” that Thomas’s originalist dissents and concurrences “have exerted on other justices, scholars, and American legal culture.” Since the publication of these commentaries, there is even more evidence of Thomas’s influence than I provided in the essay or book.
The Supreme Court has recently decided McCutcheon v. FEC, in which Chief Justice John Roberts, announcing the Judgment of the Court, eliminated the limit on the total dollar amount an individual may give to political candidates and committees. Thomas wrote a concurrence in the judgment, arguing that individual contribution caps should be scrapped altogether and that Buckley v. Valeo, which held that these caps do not violate the First Amendment, should be overruled. “This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment. Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design.” But, even though Thomas only concurred in the judgment, The Hill began its article on McCutcheon by proclaiming that “Justice Clarence Thomas’s influence was on full display in the Supreme Court’s landmark decision to strike down a crucial campaign finance restriction.” It even entitled its article, “Is it Clarence Thomas’s Court?”
In a lengthy series of concurrences and dissents in such cases as the two Colorado Republican Federal Campaign Committee v. FEC cases, Nixon v. Shrink Missouri, FEC v. Beaumont, and Randall v. Sorrell, Thomas argued that “contributions to political campaigns, no less than direct expenditures, ‘generate essential political speech’ by fostering discussion of public issues and candidate qualifications.” In these opinions, Thomas tilled the soil and planted the seeds that Anthony Kennedy in Citizens United v. FEC and Roberts in McCutcheon were able to harvest.
White and Strang both address Thomas’s belief that the principles of the Declaration of Independence underlie and infuse the Constitution. White writes that Thomas’s “most significant contribution to constitutional law” is his conviction that “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.” White also argues that because Scalia regards for the Declaration of Independence as merely “aspirational,” constitutional interpretation is for him simply “lawyers’ work,” i.e., ascertaining the meaning of texts; by contrast, because Thomas regards the Declaration as foundational, constitutional interpretation is for him based on “bedrock political principles (in the nonpartisan sense.),” and so, for example, White points out that in Grutter v. Bollinger, Thomas focuses on the rights of individuals. I am grateful for White for that insight.
Strang compliments me, saying my “description of Justice Thomas’s view of the relationship between the Declaration of Independence is well done, especially in the book where he has more space.” But, he suggests as well that it would have been helpful if I had “engaged with scholarship critical of Justice Thomas’s perspective on the Declaration,” especially those “bodies of scholarship that have argued that . . . the Declaration of Independence does not play a unique role in originalist constitutional interpretation.” To that, I have two responses. First, as I said in the preface: “In this book, I attempt to understand Thomas as he understands himself. The focus is on Thomas – on what he himself has written, not on what others have written about him.” And second, the “unique role” of the Declaration in Thomas’s jurisprudence seems confirmed by the fact that it is the very first document found in Volume I of the United States Statutes at large – appearing as it does before both the Articles of Confederation and the U.S. Constitution. I think it defensible to argue that the founding generation took the Declaration as seriously as Thomas does.
I conclude by addressing a final challenge from Strang: I mentioned in the book and my essay that the three approaches to originalism – original intent, original understanding, and original public meaning – do not always lead to the same result, and I gave as an example the question of state sovereign immunity. Strang wonders how Thomas – employing what I have called his “original general meaning approach,” one that incorporates all three approaches – “navigate[s] this and other conflicts.” He wants to know what “closure rule” Thomas applies. It is an excellent question.
For Thomas, the rule is a preponderance of the evidence. Regarding the question of state sovereignty immunity, Thomas found, as did a majority of the Court in a long chain of state sovereign immunity cases culminating in his majority opinion in Federal Maritime Commission v. South Carolina State Ports Authority, that the original public meaning of the Eleventh Amendment (namely, that state sovereign immunity was secured only in cases involving state-citizen diversity jurisdiction but not in cases involving federal-question (also known as “subject matter” or “arising under”) jurisdiction, was outweighed by the original intent of the Congress that proposed the amendment and the original understanding of the state legislatures that ratified it. I criticized these cases in Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy and in my book on Thomas, in which I pointed out that the debates in Congress over what became the Eleventh Amendment show that it rejected a proposal by Representative Theodore Sedgwick of Massachusetts that would have provided state sovereign immunity in all cases. Since both the original public meaning of the Eleventh Amendment and the original intent of the Congress that approved it weigh against unlimited state sovereign immunity, I was obliged to conclude in my book that “If South Carolina State Ports Authority (and its holding that the Constitution prohibits the federal government from passing legislation making various arms of the state subject to the administrative proceeding of federal regulatory agencies) was the first Thomas opinion that someone read, that individual would doubtless be astonished to learn that he regards himself as a textualist and as committed to a jurisprudence of original general meaning.” As Strang correctly notes, my book is a “sympathetic – though not a hagiographic – account of Justice Thomas’s work.”
 Ken Foskett, Judging Thomas: The Life and Times of Clarence Thomas (New York: William Morrow, 2004), pp. 281-82.
 524 U.S. 498 (1998).
 3 U.S. 386 (1798).
 524 U.S. at 538-39.
 134 S. Ct. 1434 (2014).
 424 U.S. 1 (1976)
 134 S. Ct. at 1464.
 518 U.S. 604 (1996) and 533 U.S. 431 (2001).
 528 U.S. 377 (2000).
 539 U.S. 146 (2003).
 548 U.S. 230 (2006).
 Shrink Missouri, 528 U.S. at 412.
 558 U.S. 310 (2010).
 539 U.S. 306 (2003).
 535 U.S. 743 (2002).
 Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD: Lexington Books, 2001).