Clarence Thomas began his tenure on the United State Supreme Court on October 23, 1991—25 years ago this Sunday. The associate justice recently joined Bill Kristol for an episode of Conversations that looks back at Thomas’s life, his time on the Court, and issues of culture and society. Watch the video below:
In a recent cover story for THE WEEKLY STANDARD, Adam J. White about the controversy surrounding Thomas’s confirmation hearing, the biased interpretation of his role on the court from liberals, and his jurisprudential approach:
For all of their similarities, however, Thomas and Scalia differed profoundly on fundamental ideas undergirding their common approach. Unlike Scalia, Thomas rooted his originalism much more explicitly in the natural law principles of the Declaration of Independence. This difference has been explored thoughtfully in books by Ralph Rossum and Scott Gerber. But Thomas himself has stressed these themes throughout his career—indeed, long predating his arrival on the Supreme Court, in a series of speeches and articles that attracted the attention of his Reagan administration colleagues. In a 1987 article for the Howard Law Journal, titled “Toward a ‘Plain Reading’ of the Constitution—The Declaration of Independence in Constitutional Interpretation,” Thomas urged readers to recognize “the link between the Constitution and the Declaration of Independence” and to further understand that the Civil War amendments—including the Fourteenth Amendment—are “extensions of the founding principles of equality and liberty.” In 1989, in the Harvard Journal of Law & Public Policy, Thomas once again rooted the Fourteenth Amendment in the Declaration’s natural law principles, writing, “The best defense of limited government, of the separation of powers, and of the judicial restraint that flows from the commitment to limited government, is the higher law political philosophy of the Founding Fathers.” To conservatives worried that “higher law” echoed the liberal Warren Court’s aggressive recognition of rights not prescribed in the Constitution, Thomas attempted to reassure them: “Rather than being a justification of the worst type of judicial activism, higher law is the only alternative to the willfulness of both run-amok majorities and run-amok judges.” These articles and arguments, which stood in stark contrast to the writings of Justice Scalia, Judge Robert Bork, and other first-generation originalists, caught the attention of the Reagan and Bush administrations. And, for that matter, of Senate Democrats, who peppered him with questions on the subject in the early days of his confirmation hearing—especially Judiciary committee chairman Joseph Biden, who made it the focus of his opening statement on the first day. But such discussions were soon swamped by the controversy for which the confirmation is now remembered.
And in TWS in 2015, Dan McLaughlin considered Thomas as a justice who often stands alone, even from his ideological allies:
But mere volume is not the measure of Thomas’s jurisprudence. For that, one must take a closer look at the many times he has stood against the prevailing winds, warning his colleagues that the Court should consider its own errors and limitations. The cases in which he has split from Scalia—his closest colleague philosophically—are telling. In Johnson v. United States, the Court struck down part of the 1984 Armed Career Criminal Act, which greatly enhances prison sentences for felons in possession of a firearm who have three prior convictions for a “violent felony.” Scalia wrote the majority opinion. It was a sweet victory for Scalia, who in several prior dissents had argued that the ACCA was unconstitutionally vague in defining “violent felony.” Thomas—noting that he had always thought the ACCA unconstitutional for allowing a judge to impose a long sentence based on facts not found by a jury—nonetheless refused to join the opinion on the grounds that the “void for vagueness” doctrine should be reconsidered. He cited its (comparatively) recent origin, which he traced to 1914 (before that, courts simply refused to enforce criminal statutes in cases where their application was unclear). And he lamented that the Court has not applied the doctrine consistently… Thomas traced how the Court’s “vagueness” cases have struck down whatever kind of law was out of fashion with the Court’s majority in a given era, from economic regulation in the pre-New Deal years (but not after) to obscenity laws in the 1940s to abortion laws (but not laws regulating speech by abortion protesters) today.
