At NRO, an on-line symposium celebrating Justice Thomas' 25th anniversary on the Court (officially, July 1). Contributions from Randy Barnett, Josh Blackman, Richard Epstein, Orrin Hatch, Mario Loyola, Carrie Severino, Ed Whelan and John Yoo. A bit from Randy Barnett's contribution:
When I am asked which Supreme Court justice I most admire, I usually decline to answer and insist that I don’t look for heroes among Supreme Court justices, past or present. Indeed, I do not care much for most of the justices who are viewed by others as heroes, such as “the great chief justice” John Marshall or “the great dissenter” Oliver Wendell Holmes Jr. But sometimes I relent and identify one justice I admire more than all the others: Justice Clarence Thomas.
My admiration for Justice Thomas stems from his unrelenting commitment to the text of the Constitution, which leads him to follow its original meaning, even where that meaning deviates from the interpretations adopted by previous justices. Because of this commitment, Justice Thomas is far more willing than any other justice on the Court to reverse these precedents that have expanded the powers of Congress beyond the original meaning of the text.
This judicial stance has distinguished Justice Thomas from originalism’s most vocal defender on the Court, the late Justice Antonin Scalia. Justice Scalia freely admitted that he was more committed to the doctrine of stare decisis — standing by legal precedents — than was his good friend Clarence.
And from Carrie Severino:
I love Justice Thomas because he’s a radical.
He is more willing than any living justice (and probably most of the dead ones) to reconsider the Court’s precedents — to go back to constitutional roots — rather than join a game of legal “telephone” in which today’s rulings would be unrecognizable to the Framers of our nation’s charter.
Frustrated with the legal landscape they inherited from FDR’s New Deal justices and from the Warren Court’s unbridled activism, conservative legal minds nonetheless often find themselves thinking inside the box. Not so Justice Thomas.
Some have calculated that every term he suggests overturning at least two different lines of Supreme Court precedent. As he said in an interview once, legal precedent holds force for him “but not enough to keep me from going to the Constitution.”
Unfortunately, Thomas often makes his calls for constitutional fidelity alone, like a Biblical prophet crying out in the wilderness. But that doesn’t bother him, first because he didn’t take an oath to try to create coalitions, to make friends on the Court, or to please the chattering classes. He took an oath to “support and defend the Constitution.” And second, while his penchant for telling the unvarnished truth is not a strategy for winning votes, even in the long term, his written opinions often are a bellwether of constitutional thought.
At Dorf on Law, Eric Segall has a different view: Justice Thomas’ America: Originalist or Republican? In conclusion:
Randy Barnett goes out of his way to praise Justice Thomas for willing to overturn generations of Supreme Court precedent if text and history so demand. But that precedent is the result of a complex combination of prior Justices' calculations of law, politics, social reactions, counter-reactions and values. Certainly times change and with those changes so should Court decisions. But it takes a special insight, a special intelligence, and a special feeling of superiority to think that one's own perspective on the complex relationships between vague text, contested history, and the rights and privileges of our people and the our governments can be resolved neutrally through an originalist methodology, and then end up with the political platform of the 1992 Republican Party. I envy that kind of insight.
Posted at 6:34 AM