Justice Thomas: not unlike a hobbit crossing “the deserts of Mordor.”

Sauron's attention is distracted away from the two hobbits making their way across Mordor, until it is too late. Image via Wikipedia

Justice Thomas is, quietly, laying groundwork for reviving and restoring sections of the Constitution long thought to be dormant, if not dead.

Not unlike a hobbit trekking to Mount Doom, as he has been compared, he is laying groundwork that sets back liberal causes, if not completely turns back the clock, several decades.

Few people are hated by the left as much as Justice Clarence Thomas. Entire books have been written deriding his character, his intellect, and his philosophy. At the end of the day, though, he is on the Supreme Court, and his critics, well…they’re not.

And that is all the difference.

He is, says Walter Russell Mead, becoming not unlike Frodo of Lord of the Rings fame: a quiet, unobtrusive danger to the evil lord Sauron who “paid little attention to the danger posed by two hobbits slowly struggling across the mountains and deserts of Mordor until he suddenly realized that the ring on which all his power depended was about to be hurled into the pits of Mount Doom.”

Suddenly, he goes on to say, “what looked like stupidity was revealed as genius, and Sauron understood everything just when it was too late to act.”

If Justice Thomas is Frodo in this metaphor, can you guess who Sauron is? And is Justice’s quiet and apparent foolishness about to turn to brilliance?

Over the last two decades since his tumultuous appointment hearings, Justice Thomas has quietly, and thoroughly, staked out a position on the court as an unabashed originalist. In his reading of the law, the law starts with understanding and interpreting the Constitution according to the meaning the men who wrote it intended. He may not participate in oral arguments (it has been five years since the last time he asked a question in oral arguments), but close observers of the Supreme Court believe that the silence is not indicative of his intellectual strengths. Quite the contrary.

Speaking to the New Yorker, Steve Calabrasi, founder of the Federalist Society, said “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most. They are very scholarly, with lots of historical sources, and his views are the most principled, even among conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”That movement is what might be most comparable to the proverbial toss of the one ring into Mount Doom. As the court has added John Roberts and Samuel Alito to its bench, a majority of the justices have shown a willingness to pick up and revive sections of the Constitution that had been long thought to be dead as the three-fifths clause (to summarize Mead, again). Included in these are the Second and Tenth Amendments, as well as the expansive reading of the commerce clause that was used to enact and retain New Deal programs under Franklin Roosevelt’s administration. His opinions, often dissents or concurrences, have been cited and recited and in some respects paved the way for the revival on originalist grounds of these long neglected clauses of the US Constitution.

Stay tuned.

In the meantime, let’s look at Justice Thomas himself. I met him during law school on a visit to the school.  I was standing on the edge of the crowd when he came in, and he reached over and took my hand when he saw my bow tie.

“Great tie, great tie,” he said, and then moved on to the front of the room. Obviously, he has great taste.

We were fortunate to have him speak, and I will never forget his personal passion, energy, and character. He won’t visit Ivy League schools, and reportedly has refused to hire Ivy League clerks or to even sit for a portrait at his alma mater Yale. He retains a “rich and public loathing” for the school.

“As a symbol of my disillusionment, I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale. I never did change my mind about its value.”

Why?

The gist of Thomas’s complaint about Yale reflects his feelings about the worth of affirmative action generally. In his book, Thomas recounts his difficulties finding a job after Yale, which he attributed to “what a law degree from Yale was worth when it bore the taint of racial preference.” In light of this, he wrote, “Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.”

This general attitude is reflected in his views about elites and their condescension to everyone else.

“I grew up with maids, and janitors, and yard people,” he told the students at Stetson. “It gives you a perspective on society. You’re looking from the bottom up, and how people see it from that direction. . . . You understand why people are angry or upset. You understand why they become rich soil for class envy and class hatred, or class warfare. You see how they become easy pickings for people who have snake-oil merchants for solving all their problems. But you develop a respect for them without condescension. You develop an attitude that we are all inherently equal regardless of who went to school and who did not—that there can be smart people who did not have any book learning and never had a chance.”

Thomas continued, “There’s a difference between being poor and being stupid. And you’re stupid for thinking that they’re stupid. As my granddaddy would say, you’re just an educated fool. . . . I am passionate about preserving liberty so that people can rise from that to go to the Supreme Court.”

In a sense, it is this bold attitude towards elites that has perhaps driven him to a willingness to overturn stare decisis, or precedent, without a backwards glance. “If it’s wrong, it’s wrong, and we are obligated to revisit it.”

Then came Kelo v. New London in 2005:  “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.”

Image via Wikipedia

Following this line of reasoning, Thomas wrote a concurrence to Printz v. United States in which he questioned whether the Brady bill might not be an infringement of the Second Amendment and ought to be addressed by the Court. It would be eleven years before the Court would do so, in Heller v. District of Columbia, and it was Justice Scalia, to whom Justice Thomas is often delegated the side-kick role, who was following the lead provided by Justice Thomas in Printz. Said Alan Gura, the attorney who argued Heller at the Supreme Court, “When a Supreme Court Justice indicates interest in a dormant constitutional question, people take note, especially if it’s a question that’s otherwise generating a lot of controversy.”

So what dormant constitutional question will Justice Thomas show an interest in next?

How about the size of government?

“The government has to be limited. We have separations of powers, and some of the other enumerated powers that prevent the government from becoming our ruler. I don’t know if that’s happened already.” [Emphasis mine]

If that’s not an especially clear sign of what Justice Thomas might do with the Affordable Health Care Act, then perhaps the following might explain more. Proponents of the Affordable Health Care Act have argued that the Commerce Clause of the Constitution permits Congress to regulate health care, essentially taking control of a large part of the American economy. Concurring in United States v. Lopez, Justice Thomas previews what we might expect from him on the topic:

I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence.

Will Justice Thomas give that tempering hand that throws the liberals ring of power into the depths of Mount Doom? Time will tell. Right now, though, as he had for the last two decades, he is carefully and methodically building the case by which to do so.

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Check out Jeffrey Toobin’s full article “Partners” on Clarence and Virginia Thomas in the New Yorker.

[Via Meadia] [New Yorker]

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