Tags: Supreme Court | Justice Clarence Thomas | Orginalist | SCOTUS | History

Justice Clarence Thomas Hailed as No. 1 Originalist in SCOTUS History

Image: Justice Clarence Thomas Hailed as No. 1 Originalist in SCOTUS History
Justice Clarence Thomas. (Getty Images)

By    |   Friday, 01 Jul 2016 07:14 AM

Conservative legal scholars celebrating the 25th anniversary of the nomination of Supreme Court Associate Justice Clarence Thomas — who has never ceased being a lightning rod since his name was first placed before the U.S. Senate for confirmation on July 1, 1991 by former President George H.W. Bush — are crediting him as perhaps the leading originalist in the history of the Supreme Court.

With the February passing of Thomas' intellectual soulmate on the bench, Justice Antonin Scalia, the torch as the Court's leading conservative has clearly passed to Thomas.

"I think the case for that is pretty strong," John Yoo, the former deputy U.S. attorney general under President George W. Bush, and now a professor of law at the University of California at Berkeley, tells Newsmax.

"I cannot think of another justice on the Court who more regularly consults the original understanding of the Constitution. And it is hard to think of another justice in U.S. history who also felt himself bound so strictly to the original understanding."  

Yoo adds: "Individual justices in individual cases might turn to the Framers, such as Justices Scalia and [retired associate justice John Paul] Stevens in the Second Amendment cases. But none do so as consistently as Thomas."

That Thomas, 68, rose from a childhood of turmoil and poverty to become one of the most influential — and vilified – legal minds in the Court's history makes him in some ways the very embodiment of the values reflected in the two documents that insiders say Thomas genuinely holds dear: The Declaration of Independence and the U.S. Constitution.

Today, court watchers see Thomas as the most consistent and zealous defender of the legal principle of originalism — the notion that the meaning of the foundational documents of democracy should be interpreted based on what the Founders' actually intended, when they pledged their lives, fortunes, and "sacred honor" to uphold them.  

In May, the soft-spoken Thomas remarked in a commencement speech to Hillsdale College graduates: "At the risk of understating what is necessary to preserve liberty in our form of government, I think more and more of it depends on good citizens discharging their daily duties and obligations. Sadly, today it seems as though grievances, rather than personal conduct, are the means of elevation."

No one could imagine the extraordinary future that awaited Thomas when he came into the world in the tiny community of Pin Point, Geogia., on June 23, 1948, the scion of a family that traced its family line directly to two slaves who lived toward the end of the 18th century.

Thomas' father left the family when the child was just 2-years-old, and his mother, a domestic worker who often earned less than a dollar a day, could barely keep the family afloat.

Tragedy struck when Thomas was 7-years-old, as the family home was burned to the ground. The single mother had no choice but to take her children to live with her parents in Savannah, Georgia.

Thomas' maternal grandfather, Myers Anderson, was a resourceful entrepreneur with little formal education. He required that his grandchildren labor on a farm to learn the meaning of hard work. Beyond a strong work ethic, he emphasized the importance of getting a good education.

Thomas would often later call his grandfather simply "the greatest man I have ever known."

Thomas proved to be an excellent student. He was raised a Catholic and he nearly went into the seminary.

In 1971, Thomas graduated from Holy Cross College, and three years later from Yale Law School.

He went to work for Missouri Sen. John Danforth and moved to Washington, D.C. in 1979. He would serve under former President Reagan as Assistant Secretary of Education for the Office for Civil Rights, and in 1982 became chairman of the U.S. Equal Employment Opportunity Commission.

In October 1989, then-President George H.W. Bush nominated Thomas to fill the seat that Judge Robert Bork had vacated on the U.S. Court of Appeals for the District of Columbia. The Senate confirmation for that judgeship went smoothly.

That would not be the case, however, in September 1991, when Thomas' SCOTUS confirmation hearings began.

As those hearings approached their closing days, allegations of sexual harassment that EEOC staffer Anita Hill had voiced in an affidavit were leaked to the media. Although no other Thomas subordinate came forward to air similar grievances at the hearings, the allegations were used to try to impugn Thomas' character.

"This is a circus. It's a national disgrace," Thomas testified, speaking of the way his nomination, as a black conservative who dared to deviate from liberal orthodoxy, had been treated.

"And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you."

Thomas was ultimately confirmed by a margin of 52 to 48. But the intense scrutiny that he experienced during the controversial confirmation hearings did not simply vanish.

But one example: In 2006, Thomas would be taken to task by some media mavens for selecting four males to fill the much-coveted clerkship slots during one Supreme Court term.

Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, offers an inside account of how Thomas wound up with all-male clerks that year. Her interview for a Supreme Court clerkship under Thomas occurred in July 2005. 

"I was really nervous at the time because I was three months pregnant," Severino tells Newsmax. "I could have passed for not being pregnant, but I was trying to determine what to do. Do I mention something?"

She talked with several people who knew Thomas well, and they were certain her pregnancy would not be a factor in Thomas' decision. She decided to mention it, and would later describe the justice's response as a gift to her and her young family.

His response, as she tells it, was that, "Our point here in doing this job and being on the Court, and protecting the Constitution, is so that we can have a country with the freedoms and liberties to live your life, to raise your family in peace and in safety.

"It would be wrong for me, and backwards for me," Thomas continued according to Severino, "to ask you to take a job or do anything that would not be the best thing for your family."

Thomas invited Severino to decide for herself when it would be best to clear for him, promising to hold open a position for her. She decided to spend more time with her newborn baby, and held off on accepting the demanding clerkship position until the 2007-2008 term.

"I wasn't really at liberty to tell the story at that point," she recalls. "People on the outside, who didn't really know the details, thought that he was making a bad decision by hiring too many men.

"Actually, he ended up with all the men because he gave me an opportunity to have a more flexible situation because of my family," she says.

Today, Severino reflects back and calls her clerkship "a dream job."

"I really admire his principle, his judicial philosophy, his faithfulness to the Constitution, and his courage as a judge," she tells Newsmax.

The founding documents reflect an underlying faith that ordinary, every-day people can live honorable lives of dignity free from the overweening supervision of king or state. Steeped in that philosophy, Justice Thomas has never lost his appreciation for doffing his black robe and interacting gregariously with individuals from all walks of life.

That may come as a surprise given that Thomas is famously known to keep his own counsel during oral arguments. Court watchers were stunned in February when, in what many perceived as an homage to his kindred spirit Justice Scalia, Thomas broke a 10-year silence in oral arguments to pose a query from the bench.   

But behind the scenes, Severino has witnessed a voluble justice who relishes conversation with anyone.

"He is very close with a lot of people on the court, the elevator operators, the janitors, the marshals," she says. "He's so friendly with everybody.

"He would know if the janitor's grandmother is in the hospital, and ask how she's doing. Or he'd be ribbing one of the marshal's over his basketball teams lost in March Madness.

"He really is a very personable man," she adds, "and much more anti-elitist than some of the other judges. He's not going to just chat with his colleagues on the court, but he knows everyone by name and he doesn't think of himself as being on a pedestal because he's one of the nine people sitting on the Supreme Court.

"He's interacting with them as a regular person, and I think that's a really beautiful part of his personality," she says.

Perhaps due to his deference in not jumping in to fire off questions at attorneys during oral arguments, Thomas' critics on the left have suggested that his consistently conservative rulings were influenced or even directed by Scalia. Thomas was just Scalia's lapdog, critics said.

But recent documents and scholarship reveal an entirely different relationship than has generally been promulgated in the media: It was Thomas who influenced Scalia to apply his pioneering perspective on original intent in a broader, deeper way.

Severino remarks: "Many times I think Thomas was calling Scalia almost to a more persistent and aggressive interpretation of his own principles that he had articulated.

"There were many times Scalia might have articulated a certain constitutional line, and Thomas took it to its logical conclusion, and said, 'Are you really willing to take this all the way?'

"I think many times he was able to encourage Justice Scalia to be more true to his principles that way," she adds.

A different if complementary perspective on Thomas — whose wife Ginni is a notable journalist and attorney in her own right — comes from conservative Indiana super lawyer James Bopp, Jr.

Before Thomas arrived on the Court, Scalia was its lone voice in consistently championing the judicial philosophy of original intent. By seconding Scalia's ideas, and in many cases pushing them even further, Bopp says Thomas "transformed how the Court interprets statutes and constitutional provisions, and legitimized [Scalia's approach] in a way that I think will endure."

Regarding the aspersions so often cast Thomas' way — the most recent example is a controversial made-for-TV movie by HBO that rehashes the Thomas confirmation battle — Bopp sees a darker purpose behind the attacks.

"They want to delegitimize the option any black person would have to being anything other than a radical leftist," says Bopp, "and attacking him personally is part of that agenda."

Bopp dismisses suggestions that Thomas' quiet approach to oral arguments legacy will undermine his legacy, pointing out that the enduring product of any judge is their writings.

"Way too many justices now on the court, particularly on the liberal side," Bopp adds, "are way more interested in pushing their agenda rather than figuring out where the truth lies as far as the law is concerned."

Now that Thomas' first quarter-century on the Court is behind him — a unfounded rumor he might soon step down was recently debunked — legal scholars are wondering where his philosophy of original intent and limited government may ultimately lead him.

Court observers note Thomas has recently begun to tilt against the rise of the administrative state — the notion that legions of federal bureaucrats should be left free to draft rules and regulations for the executive branch without any firm constitutional foundation.

As he does so, it is highly unlikely that Thomas will one day come to be viewed as a politically correct member of the Court. But for him the price of that sort of acceptance, it seems, has always been too high.

As he advised the Hillsdale graduates in his commencement address: "Do not hide your faith and your beliefs under a bushel basket — especially in this world that seems to have gone mad with political correctness. Treat others the way you would like to be treated if you stood in their shoes.

"These small lessons," he said. "Become the unplanned syllabus for becoming a good citizen. And your efforts to live them will help to form the fabric of a civil society, and a free and prosperous nation, where inherent liberty and equality are inviolable."  

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Conservative legal scholars celebrating the 25th anniversary of the nomination of Supreme Court Associate Justice Clarence Thomas - who has never ceased being a lightning rod since his name was first placed before the U.S. Senate for confirmation on July 1, 1991...
Justice Clarence Thomas, Orginalist, SCOTUS, History
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Friday, 01 Jul 2016 07:14 AM
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