There’s been an increasing amount of debate in recent months about whether it would be strategically smart for Justice Clarence Thomas to retire from the Supreme Court after the end of this term.
Over at Hot Air, Allahpundit riffs off of a Jeffrey Toobin piece in the New Yorker, and ably lays out the case for why it could make sense. The gist of it is: President Trump is in office and Republicans have 53 votes in the Senate. It would be a relative breeze to replace Thomas with a solid conservative this year, but after 2020, it becomes a major question mark.
At 70, Thomas is the oldest conservative justice, and by the end of this term he will have served for 28 years. If he hangs as long as he can, and suffers a decline in health at some point in the future when a Democrat is president or Republicans are in the minority in the Senate, any replacement would either have to be somebody on the far left, or a “compromise” choice that could effectively end up voting with liberals on major cases.
So, there is a long-term strategic argument that has some merits. That said, I think it’s also worth considering the importance of having Thomas on the court for the principled judgment he brings that is not likely to be replicated by any successor, even a capable conservative.
Arguably more than any justice in history, Thomas has been consistent in his efforts to make decisions on the basis of what the Constitution actually says and means. “Something has gone seriously awry with this Court’s interpretation of the Constitution,” he once lamented in a powerful dissent to the abominable Kelo v. New London decision, in which the majority invented the power of government to seize private property from individuals to give it to a private business if deemed to be part of a broader economic development plan.
The late Antonin Scalia was known for his views on federalism and for his originalist jurisprudence, but on occasions he allowed his cultural conservatism to cloud his judgment. One good example is the Gonzalez v. Raich decision, in which Scalia sided with the majority in ruling that federal drug enforcement officials could prevent a private individual from cultivating medical marijuana for personal use, even when allowed by California law. Thomas rightly dissented, arguing, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
In addition to his philosophical views, he has demonstrated a tremendous amount of judicial courage. Whether this is rooted in his amazing journey from growing up in abject poverty in the segregated south, or comes from the way he was horribly mistreated during his confirmation hearings, the bottom line is that he has never given a toss about how he may be viewed by elites if he believes a given decision is the right one. For conservatives who want to see the Supreme Court forge a new path, and undo flawed jurisprudence of the past, courage should be seen as just as important a quality for a justice as their philosophy and qualifications. That X-factor is ultimately a crap shoot when assessing new candidates.
There are also other cases in which Thomas’s background as a black conservative gives him a unique perspective that we’d otherwise be deprived of. One great example is in his concurrence in the McDonald v. Chicago gun rights case, in which he delved into the fascinating history of how gun laws had their origins in efforts by white southerners to deprive slaves and free blacks of their right to bear arms to prevent slave rebellions before the Civil War, and black uprisings in its aftermath.
So, while I get the cold rationale behind the argument that Thomas should retire, I also think it’s important to recognize that his voice on the court would be irreplaceable.
