The Court's Mr. Right - emergence of Justice Clarence Thomas as masterful interpreter of constitutional law

National Review, August 9, 1999 by Daniel E. Troy

Clarence Thomas makes his mark.

Mr. Troy practices constitutional law in Washington, D.C., and is an associate scholar at the American Enterprise Institute. He is the author of Retroactive Legislation.

In late May, the Washington Post carried a front-page story headed "After a Quiet Spell, Justice Finds Voice; Conservative Thomas Emerges from the Shadow of Scalia." Joan Biskupic, the Post's Court-watcher, contended that "increasingly, Thomas has been breaking from Scalia, taking pains to elaborate his own views and securing his position as the most conservative justice on the court." It's true that during the recently concluded Supreme Court term, Clarence Thomas bolstered his standing as the Court's greatest champion of the belief that the Constitution should be interpreted according to the original understanding of its text. Many conservative legal analysts who once turned directly to the opinions of Justice Antonin Scalia to find out the "right" answer now go straight to Thomas.

But that's been true for years. Contrary to the Post's suggestion, Thomas was never a "clone" or "puppet" of the "forceful, fiery-tempered Scalia." He was never Scalia's "shadow." So Scott Gerber demonstrates in First Principles: The Jurisprudence of Clarence Thomas, an excellent and balanced review of the justice's first five years on the Court. During those five years, Thomas and Scalia voted together 80 percent of the time. But Justices Stephen Breyer and Ruth Bader Ginsburg, President Clinton's appointees, voted with Justice David Souter (the Court's most liberal member) 84 and 80 percent of the time, and nobody ever called them Souter clones.

It would not be unusual for a judge to have gained confidence over his years on the bench. But Thomas had an unusually strong start. Even during his "acclimation period," Gerber observes, "senior members of the Rehnquist Court did not appear reluctant to assign Justice Thomas the opinion for the Court," including assignments in important cases. Gerber also shows that Thomas was unafraid to speak out on significant issues. As he concludes, "Thomas is not simply . . . Scalia's loyal apprentice-no matter how vociferously some seek to establish and maintain this myth. Justice Thomas is his own man, with his own jurisprudence."

Thomas and Scalia did indeed disagree in more high-profile cases than usual during the last term. But the explanation may be simply that the term presented more cases in which Thomas's views differed from Scalia's. As Gerber says, Scalia increasingly resorts to "some sort of Burkean 'conventionalism' in which the meaning of a particular provision of the Constitution is defined by the consensus view of the existing political community." From his earliest days on the Court, Thomas has focused more on the original meaning of the constitutional text and has thus been more willing to overturn precedents he considers inconsistent with it-even if the line of cases he is opposing goes back to previous centuries. His approach is therefore more likely than Scalia's to win applause from those who believe that the modern Supreme Court has gone dramatically off track, though both approaches have conservative adherents.

One case that made the Post take notice of the Scalia-Thomas divide was Saenz v. Roe. At issue was whether California could try to stop being a "welfare magnet." The state wanted to limit recent emigrants from other states to the same level of benefits they received in their old homes rather than pay them California's more generous benefits. The Supreme Court, by a vote of 7-2, held that such discrimination violates the "right to travel," which partially rested on the Fourteenth Amendment's declaration that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Thomas dissented, denying that welfare is a "privilege" of California citizens.

But he did not stop there. He charged that an earlier Court had "all but read the Privileges and Immunities Clause out of the Constitution" in the Slaughter-House Cases of 1873. As a result, later Courts have tried to read some of that clause's substance back in through dubious interpretations of the other clauses of the Fourteenth Amendment (the equal-protection and due-process clauses)-a tactic that has enabled the Court to reach many liberal policy outcomes that were not really entailed by the amendment at all. In the California case, wrote Thomas, the Court appeared to "breathe new life into the [Privileges and Immunities] Clause," but without addressing its "historical underpinnings or its place in our constitutional jurisprudence." Thomas then extended an offer that, if accepted, would radically reshape constitutional law:

Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions of our equal protection clause and substantive due process jurisprudence.