Garrett Epps in the Atlantic on Clarence Thomas

In the Atlantic, Garrett Epps has a piece on Clarence Thomas.  I like Epps.  He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful.  And his book on the 14th Amendment was quite enjoyable.  But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas.  In fact, I think Epps was quite unfair to Thomas.  I thought I would respond to some of his major points.

First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC.  Epps notes that the “experience left him embittered.”  While Epps sort of presents both sides, he neglects an obvious inference.  The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false.  To be clear, I don’t know what happened between the two.  But the failure to note this obvious explanation for Thomas’s reaction is disappointing.

Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.”  This complaint is curious.  Thomas joined the three other dissents, which did mention these precedents.  Thomas wrote separately to discuss the original meaning.  Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again. 

Third, Epps notes that Thomas is unusual in that he cites the Declaration of Independence.  Epps criticizes Thomas, writing that “the Declaration of Independence is not actually a source of law, any more than is Locke’s Second Treatise of Government or a “1756 editorial in the Boston Gazette,” other sources that Thomas cites.  But Epps again is not on strong ground.  Sometimes Thomas uses the Declaration of Independence (or Locke’s Second Treatise) as evidence of what constitutional terms, like liberty, mean, and that is entirely unproblematic.  At other times, Thomas has seemed to cite the Declaration as either a source of law or at least a source of binding American principles.  While I don’t agree with Thomas on these occasions, I find it curious that Epps is making this criticism.  Epps is a nonoriginalist who seems to believe that judges can look to other sources, such as modern values and the opinions of the judge, as sources of law.  Certainly, the Declaration is a less problematic source of law than those sources.

Finally, Epps concludes his attack by claiming that Thomas

does not take part in the arguments before the Court. His decisions rest on unusual grounds, often not even mentioned in the briefs; he will not even air his idiosyncratic ideas at a time when others might engage them. He does not tend to limit himself to the issue presented or the factual context within which it is embedded.

He is, in other words, not a judge at all. He seems instead to operate as a kind of would-be Platonic guardian, eager to govern the nation according to his own personal opinions—opinions to which law, and fact, and indeed reasoned argument, are all but irrelevant.

Once again, Epps’s criticisms are off the mark.  Yes, it is true that Thomas does not spar with the lawyers and justices at oral arguments, but why is this important?  Most appellate practitioners recognize that oral arguments are largely beside the point.  In fact, in many cases in the federal circuit courts, oral arguments are not even allowed.

Epps claims that Thomas does not tend to limit himself to the issue presented and his arguments rest on unusual grounds.  Assuming that is correct, Epps neglects that Thomas is a great dissenter.  These features, assuming they are true, are characteristic of dissents.  Thomas is attempting to persuade the other justices and the public of his originalist views of the Constitution.  One might think that Epps, as a critic of much of our existing political culture, would be praising such unconventional approaches, not criticizing them (even if Epps disagrees with Thomas’s views on law).

Epps says Thomas is not a judge.  But Thomas, more than any other Justice, purports to follow the Constitution’s law as an originalist understands it – the Constitution’s original meaning.  It is the nonoriginalist justices – the one’s Epps likes – who substitute their views for the Constitution and therefore fail to be judges.  Thomas does not seek “to govern the nation according to his own personal opinions,” but according to the Constitution.

Update: I changed my description of Epps’s politics to make it more accurate.