At The New Yorker, Jeffrey Toobin: Clarence Thomas Has His Own Constitution.
The truth is that Thomas’s view of the Constitution is highly idiosyncratic. Indeed, one reason he wrote so many opinions (often solo dissents and concurrences) was that no other Justice, including Scalia, shared his views. Thomas is a great deal more conservative than his colleagues, and arguably the most conservative Justice to serve on the Supreme Court since the nineteen-thirties.
While some Justices are famous for seeking consensus with their colleagues, Thomas seems to go out of his way to find reasons to disagree—often in the most provocative ways. …
Far more than even Scalia did, Thomas endorses originalism—the belief that the Constitution should be interpreted as its words were understood at the time it was written. By a vote of 5–3, the Court struck down Texas’s restrictions on abortion clinics in Whole Woman’s Health v. Hellerstedt, but neither of the other dissenters (Roberts and Samuel Alito) joined Thomas’s opinion. What’s most extraordinary about Thomas’s dissenting opinion in the abortion case is not that he objects to the ruling; as he noted, “I remain fundamentally opposed to the Court’s abortion jurisprudence.” But Thomas also took the opportunity to reject more than a century of the Court’s constitutional jurisprudence.
He doesn’t respect the Court’s precedents. He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law.
For a different take, at Liberty Law Blog, Ralph Rossum: The Court’s Last Shreds of Legitimacy. From the introduction:
His second significant opinion was delivered last week; however; his dissent in Whole Woman’s Health v. Hellerstedt was not about whether there is a constitutional right to abortion but rather about how “the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion”—is destroying the principle of the rule of law.
Thomas’s dissent is a lament to the failed “promise of a judiciary bound by the rule of law.” It concludes with these words: “The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where law, properly speaking, has any further application.’ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.”
Just as Thomas concludes his opinion by quoting the late Justice Antonin Scalia, so he begins it. Justice Breyer’s majority opinion, he writes, “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Stenberg v. Carhart (2000) (Scalia, J., dissenting).” In fact, Thomas quotes Scalia seven times in his dissent, and there is a reason. In United States v. Virginia (1996), Scalia attacked the Court’s use of intermediate scrutiny, declaring that it applies it “when it seems like a good idea to load the dice.” Thomas’s entire dissent builds on Scalia’s critique and the devastating consequences for the rule of law that flow from it. “[T]he label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it ‘rational basis,’ intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.”
Thomas pointed out that ‘[t]hough the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960s did the Court begin in earnest to speak of ‘strict scrutiny’ versus reviewing legislation for mere rationality, and to develop the contours of these tests.” Over time, “the tiers of scrutiny proliferated into ever more gradations,” with Craig v. Boren (1976) adding intermediate scrutiny for sex-based classifications and with Casey adding the undue-burden test, “ yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review.” Yet, the use of these “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means (United States v. Virginia, Scalia, J., dissenting)” is, for Thomas, simply “illegitimate.” “The Constitution does not prescribe tiers of scrutiny. The three basic tiers—‘rational basis,’ intermediate, and strict scrutiny—‘are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’”
RELATED: In the Weekly Standard, Adam White: Justice Thomas, Undaunted.
Posted at 6:40 AM