What the justice has achieved in three decades on the Supreme Court
In September 1991, within days of the commencement of Clarence Thomas’s Supreme Court confirmation hearings, construction began on Boston’s ambitious “Big Dig” highway project. Justice Thomas’s confirmation a month later set into motion another big dig — his painstaking, careful, and relentless quest to unearth, clause by clause, issue by issue, the original meaning of the Constitution of the United States.
The two projects were animated by radically different goals. By relocating Interstate 93 into a subterranean tunnel, Boston’s Big Dig sought to bury the mistakes of the past. By excavating and removing layer upon layer of erroneous constitutional doctrine, Justice Thomas’s big dig has sought to expose them to the light of day.
Plagued with delays and billions of dollars over budget, Boston’s Big Dig was finally completed in 2007. Justice Thomas’s project continues. While other justices have been, and are, originalists, Justice Thomas stands out both for his persistent determination to lay bare the errors of past precedents — to which he has declared that he owes no fidelity — and for his commitment to offering a principled, historically grounded road map to restoring the Constitution as it was originally understood. Justice Scalia once quipped that Justice Thomas was a “bloodthirsty originalist.” Justice Thomas didn’t mind. He believes that “something has gone seriously awry with this Court’s interpretation of the Constitution” and he is determined to right the record. He cuts no corners and leaves no stone unturned.
Criminal procedure, sovereign immunity, the administrative state, separation of powers, cruel and unusual punishment, property rights, free speech, religion, equal protection, due process, foreign affairs, the scope of Congress’s power to regulate commerce, stare decisis . . . the list goes on and on. As John O. McGinnis and Michael Rappaport recently observed, “there are now few areas of constitutional law on which he has not left directions about recovering the original meaning of our fundamental law.”
These recovery efforts began during his early days on the Court, when he adopted the practice of flagging areas of settled constitutional law that he would reconsider in an appropriate case. Over time, Justice Thomas has developed these early missives into a full-blown originalist canon in scores of opinions rejecting established doctrine. Consider a few examples.
In 1995, in Missouri v. Jenkins, the Court concluded that a federal judge had exceeded his lawful authority by issuing a sweeping order in a school-desegregation case. In his concurrence, Justice Thomas began, “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.” He then blamed this pernicious tendency on decades of precedents permitting “federal courts to exercise virtually unlimited equitable powers” in ways that have “trampled upon principles of federalism and the separation of powers and . . . freed courts to pursue other agendas unrelated to the narrow purpose of precisely remedying a constitutional harm.” Since Jenkins, his early skepticism about federal-court overreach in the desegregation context has led him to develop a theory of federal courts’ equitable powers that rejects both universal (or “national”) injunctions and the practice of declaring laws unconstitutional “on their face” (that is, in all possible applications).
Justice Thomas’s effort to revive the 14th Amendment’s privileges-or-immunities clause — which was eviscerated in the 1873 Slaughterhouse Cases — also unfolded over decades. The traditional mechanism for binding states to federal constitutional rights — using substantive due process to “incorporate” the Bill of Rights and articulate other “unenumerated” rights — is problematic for conservatives for a number of reasons, including the fact that, in Justice Scalia’s words, the concept of substantive due process is “an oxymoron.”
Speeches that he delivered in the 1980s are sprinkled with evidence that Justice Thomas had been considering this conundrum for years prior to his nomination. He took the opportunity to raise it on the Court in Saenz v. Roe (1999). Saenz held that a California law limiting new residents’ rights to public assistance violated the “right to travel,” which the majority (surprisingly) suggested might be protected by the privileges-or-immunities clause. In dissent, Justice Thomas observed, “Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.” But “unlike the majority, I would look to history to ascertain the original meaning of the Clause.”
A decade later, in 2015, he did exactly that in McDonald v. City of Chicago, which incorporated the Second Amendment’s right to keep and bear arms against the states. In his concurrence, Justice Thomas rejected entirely the incorporation doctrine, arguing instead that the privileges-or-immunities clause is the proper vehicle for binding states to federal constitutional rights. Returning to the historical moment when the 14th Amendment was ratified — the moment when we extended constitutional rights to those who were formerly enslaved Americans — he powerfully set forth the case that the right of self-defense, critically important to freed slaves, was a privilege or immunity of citizenship. (He left open the question of which other rights are.) Justice Scalia — long the most vociferous critic of substantive due process — declined to join Justice Thomas’s opinion on stare decisis grounds, reflecting a clear distinction between the two originalist giants.
Justice Thomas has also demonstrated an admirable willingness to excavate away even his own past errors. Consider, for example, his about-face on the question of deference to administrative agencies. In 2005 he authored the majority opinion in National Cable & Telecommunications Services v. Brand X Internet Services, which required federal courts to defer to an agency’s reasonable interpretation of law even when it differed from the court’s interpretation. A decade later, he confessed error in a series of opinions calling into question a number of aspects of administrative law, including deference to administrative agencies. And in 2020 he explicitly called upon his colleagues to overrule Brand X and its predecessors. “Although I authored Brand X,” he observed, “it is never too late to surrender former views to a better considered position.” He rejected deference to administrative agencies as an abdication of the judicial role, warning that “this apparent abdication by the Judiciary and usurpation by the Executive is not a harmless transfer of power. The Constitution carefully imposes structural constraints on all three branches, and the exercise of power free of those accompanying restraints subverts the design of the Constitution’s ratifiers.”
Justice Thomas’s views on the scope of federal courts’ equitable powers, on the privileges-or-immunities clause, and on administrative law have yet to command a majority of the Supreme Court (although they may well do so in the future). In other areas, views first articulated in his lone dissents have become the law of the land. An important example came last term in Americans for Prosperity Foundation v. Bonta, which invalidated a California regulation requiring nonprofits to disclose their donor lists and made clear that the First Amendment protects the right to speak, assemble, and associate anonymously. In her dissent, Justice Sotomayor expressed dismay: “Just 11 years ago, eight Members of the Court, including two Members of the current majority, recognized that disclosure requirements do not directly interfere with First Amendment rights.” The one dissenting member in the previous case, of course, was Justice Thomas.
Originalism has, of late, fallen out of favor among some conservatives. These critics argue that those of us who embrace it have been duped — sold a bill of goods about a hollow, amoral methodology that consistently fails to deliver desirable results. These critics join those on the left who argue that originalism is a subterfuge through which conservatives impose their preferences. While these criticisms are obviously inconsistent, since originalism cannot both ignore results and be driven by them, Justice Thomas’s jurisprudence provides the best response to each.
To the extent that some conservative critics conflate complaints about originalism being bad and originalism being done badly, Justice Thomas has demonstrated the force of originalism done well. And to those who worry that originalism is result-oriented, Justice Thomas has demonstrated the important distinction between consequences and consequentialism. In any number of cases, he has authored or joined opinions that reached results at odds with his personal preferences. As he observed 25 years ago in Bennis v. Michigan: “This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable.”
That is not to say that Justice Thomas is blind to the reality that decisions have consequences. Nor is he shy about pointing them out. For example, he has condemned efforts to weaponize the establishment clause to invalidate school-choice programs, quoting Frederick Douglass — “Education means emancipation. It means light and liberty” — and observing that “while the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children.” He again quoted Douglass in his dissent in the Michigan affirmative-action case — “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.” And in Chicago v. Morales, which invalidated a law banning gang loitering on “void for vagueness” grounds (a doctrine that Justice Thomas has since called into question), he chided his colleagues: “The people who will have to live with the consequences of today’s opinion do not live in our neighborhoods.”
Justice Thomas points out these consequences not because his interpretation of the law is driven by them, but rather because he understands that constitutional missteps can wreak havoc in the lives of ordinary people. Just as the hubris of city planners in the 1950s and 1960s led to the destruction of entire communities in the name of “progress,” the hubris of past “progressive” constitutional errors has left a path of destruction as well. He would clear away the rubble.
I was a senior in college when Justice Thomas was confirmed, and I began law school just as his tenure on the Court was getting under way. As a young lawyer, I had the immense privilege of serving as his law clerk. Now, as a law professor, I teach his opinions — which serve as a constant reminder that his big dig has already proven to be one of the most influential jurisprudential undertakings in history. And when I teach those opinions, I take care to tell my students that Justice Thomas’s influence as a jurist is matched by his decency, kindness, and humility. He understands, in his words, that “a judge must get the decision right because, when all is said and done, the little guy, the average person, . . . the real people of America will be affected not only by what we as judges do, but by the way we do our jobs.”
For the way he has done his job, and the man that he is, Justice Thomas has earned his place among our nation’s greatest justices.
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Nicole Stelle Garnett is the John P. Murphy Foundation professor of law at University of Notre Dame and an adjunct fellow at the Manhattan Institute.
This piece originally appeared in National Review Online