Clarence Thomas: Radical? Check. Originalist? Not so much.

Slate has an interesting essay titled Originalist Sins: The Faux Originalism of Justice Clarence Thomas. The authors, a law professor at U. Va. and a Washington-based public interest attorney, note that everyone considers Supreme Court Associate Justice Clarence Thomas a radical, including his supporters. However, supporters claim that Thomas’ radicalism stems from absolute fidelity to originalism, a constitutional interpretation methodology under which each provision of the U.S. Constitution has a fixed, immutable and determinable meaning as of its ratification. Thomas, his acolytes claim, is a more faithful originalist that even Antonin Scalia, widely considered to be the originalist’s originalist.

The essay’s authors debunk that notion quite convincingly by comparing concurring opinions Thomas wrote in two separate school rights cases decided a few days apart near the end of the Supreme Court’s recently concluded term. In one case, which involved the free speech rights of public school students, Thomas concluded that public school students have no such rights at all. Why? Because the framers of the First Amendment would not have wanted students to have such rights, that’s why.

How Thomas reached that conclusion is anyone’s guess. Free universal public education was just an itch in some starry-eyed 18th Century hippie’s pants when the Bill of Rights was ratified. Thomas is simply guessing as to what the framers would have thought of applying the Speech Clause to public schools. As the essay authors amusingly note:

This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?

The point is that Thomas reached his conclusion, so he says, because originalist considerations compel that conclusion.

The second case involved a challenge to a voluntary school integration plan. Thomas hates school integration; he considers it elitist nutjobbery, and voted accordingly. But his opinion is bereft of any discussion of what the framers of the Fourteenth Amendment would have though of plans like the one before the Court. Why the omission? Because notion that the people who drafted and ratified the 14th — which includes the Equal Protection Clause — intended to prohibit voluntary integration is idiotic beyond all description, that’s why.

Not surprisingly, the authors conclude that Thomas uses originalism as an expedient, embracing it when he can make the doctrine support the result he wants and ignoring it when he can’t:

His recent opinions instead suggest that Thomas will use originalism where it provides support for a politically conservative result, even if that support is weak, as it is in the student-speech case. But where history provides no support, he’s likely to ignore it altogether. If his cheerleaders believe otherwise, they should try to reconcile his opinions in the two school cases on originalist grounds. (Emphasis added.)

I look forward to seeing whether any of Thomas’ jurisprudential butt buddies take up the challenge.

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  • illusory tenant  On August 4, 2007 at 1:43 pm

    Good stuff.

    Thomas’s concurrence in Bong Hits 4 Jesus a.k.a. Morse v. Frederick represents his assuming Rehnquist’s mantle of Old Weird Uncle Historian of the Court.

    Not only does he repudiate any claim to student free speech by way of completely discarding Tinker v. Des Moines, he argues, according to his state as in loco parentis theory, that teachers may lawfully take kids out back and beat the crap out of them (just not “excessively”).

    Needless to say, nobody joined his opinion.

  • genghishitler  On August 4, 2007 at 2:52 pm

    Thomas’s concurrence in Bong Hits 4 Jesus a.k.a. Morse v. Frederick represents his assuming Rehnquist’s mantle of Old Weird Uncle Historian of the Court.

    Thank goodness. Heaven forbid that the Court should have to do without an Official Revisionist, even for one term.


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