Justice Thomas and Liberal Originalism

First Principles: The Jurisprudence of Clarence Thomas.
By Scott Douglas Gerber.
New York University Press.  201 pp. $30.

It should be no surprise that a book devoted to winnowing the law and politics arising from Justice Clarence Thomas’ appointment and tenure on the Supreme Court was written by a lawyer-slash-political scientist. Scott Douglas Gerber holds both the J.D. and Ph.D. from the University of Virginia. And while his professed “legal realism” leads him on occasion to misread Justice Thomas as a political and judicial theorist, First Principles: The Jurisprudence of Clarence Thomas provides the most comprehensive and incisive account of Thomas’ political philosophy to date.

Gerber, who teaches at both the College of William and Mary and its law school, made his mark as a political scientist by turning his doctoral dissertation into a book, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (1995). It argues for a Lincolnian appeal to the Declaration as a guide to constitutional adjudication, a thesis ultimately deriving from the seminal analysis of the 1858 Lincoln-Douglas debates by Harry V. Jaffa in Crisis of the House Divided (1959).

In a fragment penned before his first inauguration as President, Lincoln highlighted the “philosophical cause” of America’s greatness as “the principle of ‘Liberty to all.’” He went on to write that the “expression of that principle, in our Declaration of Independence, was most happy and fortunate,” for it gave the American colonists something worth fighting for––“the promise of something better than a mere change of masters.” To Secure These Rights argued that “the Constitution should be interpreted in light of the natural rights political philosophy of the Declaration of Independence”––an approach Gerber calls “liberal originalism.”

Gerber says First Principles is a “sort of sequel” to his earlier book, suggesting an affinity for the prominence of the Declaration of Independence in Justice Thomas’ political and constitutional thought. This is not to say he finds Justice Thomas’ jurisprudence entirely consistent with his own conception of how the Declaration should inform constitutional interpretation. He makes a distinction between “liberal” originalism and what he calls “conservative” originalism. More on this later. Nevertheless, Gerber delights in finding a constitutional soul mate on the high court, and First Principles presents a sympathetic but not uncritical assessment of Justice Thomas’ first five years there.

The “unusually vitriolic” assessments of Clarence Thomas before and after his appointment to the Supreme Court, Gerber suggests, were sparked by his conservative credentials as a black man of influence. Because Thomas did not mouth the conventional platitudes and policies of the civil rights establishment, he was branded a traitor and worse. Gerber concludes that “Justice Thomas’ record is almost always judged against the benchmark of partisanship” from both liberal and conservative camps––a problem he aims to rectify.

Gerber argues that “being a government official and not an academician” hampered Judge Thomas’ efforts before the Senate Judiciary Committee to present a consistent account of his judicial philosophy. But recall what happened to Mr. Consistency himself, Robert H. Bork, at his confirmation hearing four years earlier. Unfortunately, Thomas’ year and a half as a circuit court judge gave him little time to resolve several constitutional questions that have divided legal scholars and the American public for much of the Court’s history––and it showed.

But could Thomas really have persuaded Senator Joseph Biden, the Delaware Democrat who chaired the Judiciary Committee hearings, that the Declaration of Independence’s “natural law” principles applied to Lochner v. New York (1905) or Roe v. Wade (1973) without showing an apparent bias in future cases? Biden had chided Judge Bork previously for not knowing that his rights derived from his humanity under God. Recall also that confirmation hearings are job interviews. That requires a certain finessing of one’s judicial philosophy.

No surprise, then, that Thomas would move gradually from a pro-defendant’s jurisprudence at his confirmation hearing to a critic of the Warren Court’s “rights revolution” once on the Court. Gerber points out that Justice Thomas tied his concern for “recognizing the criminal defendant’s free will and moral responsibility” to the problem of race. Thomas acknowledged the high-mindedness of modern liberals in their effort “to stop society from treating blacks, the poor, and others... as if they were invisible, not worthy of attention,” only to add, “But the [rights] revolution missed a larger point by merely changing their status from invisible to victimized.” With a voice reminiscent of Frederick Douglass and Ralph Ellison, Thomas concluded, “Minorities and the poor are humans––capable of dignity as well as shame, folly as well as success. We should be treated as such.”

Gerber highlights the importance of Thomas’ commitment to natural law as a jurist. It is important that Thomas the nominee did not disavow his commitment to natural law, for without the natural law to guide the positive laws of human society, what is to keep government from abusing its authority? This applies even to republican governments. There the political supremacy of legislative majorities requires not only some system of checks and balances to stave off the factions that have been endemic to democracies and republics everywhere, but also an understanding common to citizen and ruler alike that not all things are allowed––even with political majorities behind them.

So when he responded to questions from Senator Edward M. Kennedy about his praise of Justice Antonin Scalia’s lone dissent in the now infamous independent counsel case, Morrison v. Olson (1988), Thomas argued that a “lack of accountability could actually undermine the individual freedom of the person who is being investigated.” Given that Thomas “spent almost his entire professional life in government service,” one wonders how he would have understood his career as a public servant if he was not so beholden to what Gerber calls “a classical liberal interpretation of America’s founding moment.”

When one views the Supreme Court as “the principal guardian of the people’s natural rights,” as Gerber did in To Secure These Rights, a reliance on a “higher law” jurisprudence becomes indispensable. Of course, Justice Thomas would be the last current Justice, even behind Justice Scalia, to put forward the Supreme Court as the fundamental guarantor of individual rights. Justice Thomas would agree with Federalist No. 78, which states that while “the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments,” it is the limited constitution itself that provides the best security against tyranny.

As Justice Thomas reasoned in his concurring opinion in U.S. v. Lopez (1995), which overturned a federal gun-free school zone law enacted under the Commerce Clause, upholding the law would be handing Congress “a blank check” by giving them “a ‘police power’ over all aspects of American life.” He understood the Constitution as granting Congress enumerated powers precisely in those areas where the prevailing “substantial effects” test would apply. His concurrence thus invited a reexamination of the post-New Deal Court’s expansion of Congress’ authority under the Commerce Clause. Not even Justice Scalia accepted the invitation.

The central thesis of First Principles, at least as it regards Gerber’s critique of Justice Thomas as a natural rights jurist, is distinguishing Justice Thomas the “liberal originalist” (like Gerber) from Justice Thomas the “conservative originalist” (like Justices Scalia and William Rehnquist). On civil rights issues––namely, desegregation, voting rights, and affirmative action––Justice Thomas holds true to the ideal of human equality as the lodestar for judicial decision-making. But in cases dealing with federalism and with civil liberties––e.g., criminal justice, the religion clauses, and free speech––Justice Thomas subscribes to the traditional “original intent” school, which holds fast to the constitutional framers’ “specific intentions––as manifested in the text and historical context of the Constitution.”

As Gerber understands Justice Thomas, the individual should reign supreme among the Supremes. When judging government actions that restrict individual liberty, the Justices should hearken to the Declaration of Independence’s clarion call to secure the equal rights of individuals in the face of potential encroachment by state and federal government. This “first principle” of Justice Thomas, the primacy of the individual, may very well stand as his signal contribution to a nominally conservative Court. Or so Gerber would argue, even as he points out Justice Thomas’ reinvigoration of a respect for the constitutional structure as a substantive means of securing the rights of individual Americans.

Gerber gets sidetracked when he tries to develop Thomas’ alleged “marrying of law and politics” as a Justice. Here, Gerber the “legal realist” gets the better of himself. Perhaps it’s a bona fide conviction that “we are all [legal] realists now” and therefore Justice Thomas is not excluded, or merely an attempt to mollify fashionable opinion by offering painstakingly “equal time” to supporters and detractors of Clarence Thomas (only to shoot down both sides as partisan hacks).

Gerber seems not to notice that his own theory of constitutional interpretation requires that Justices rise above mere politics to a level of reflection and choice that enables them to secure justice for the parties to an issue. How can Gerber be a “realist” if power politics and a judge’s policy preferences undermine all attempts to ensure that the Constitution stands as the benchmark for judicial decision-making?

Civil rights for Judge Thomas before his Senate inquisitors amounted to individual, not group, rights, coupled with the responsibility to make the most of one’s freedoms. Of course, Gerber highlights that as chairman of the Equal Employment Opportunities Commission (EEOC) in the Reagan Administration, Thomas was never reluctant to “defend anyone who could show that she or he was personally discriminated against.” But where government acted forcefully in its limited capacity to secure an individual’s right to pursue happiness, Thomas believed the true remedy for poverty or lack of opportunity due to discrimination by race (or gender or age) was “self-help.” In Lincolnian fashion, Thomas believes that a person’s own resolve to succeed is the single most important determinant of success.

This latter concern that individuals be protected only from external interference with their inalienable right to govern themselves coincides with the related issue of economic rights. Citing a 1987 speech to the Business Law section of the American Bar Association, Gerber shows that Thomas believes that pitting property versus personal rights is a false dichotomy: “What we need to emphasize is that the entire Constitution is a Bill of Rights; and economic rights are protected as much as any other rights.”

Gerber’s evaluation of Thomas as a Justice unfortunately falls a bit short because he misreads the meaning of equality in the Declaration of Independence. Calling equality an “ideal” yet to be achieved, Gerber takes the opportunity to praise Critical Race Theorists, of all people, for supposedly “reminding those of us who are not minorities that, unfortunately, racism still exists in America.” Borrowing from Gunnar Myrdal’s magnum opus, The American Dilemma: The Negro Problem and Modern Democracy (1944), Gerber sees race as the longstanding problem of the American regime.

But as Harry Jaffa pointed out in Crisis of the House Divided, not race but the equality/consent principle of the Declaration of Independence poses the intractable challenge for the American experiment in self-government. “Now the opinion of the governed,” Jaffa observed, “unfortunately for the utopians of this world, does not always favor the full and unequivocal recognition of that very equality which, alas, constitutes the title deeds of its own authority.”

While the protection of each citizen’s equal right to “life, liberty, and the pursuit of happiness” may be lacking, public opinion as the practical expression of “the consent of the governed” stands as the only just means of securing individual rights. The raison d’être of a republican statesman is to inform public opinion so as to provide that security. As Thomas Jefferson put it, “Though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.”

Turning fifty-one this year (by far the youngest member of the Court), and finding himself eight years into his Supreme Court tenure, Justice Thomas is only going to get better. With Chief Justice Rehnquist and Justices Sandra Day O’Connor and John Paul Stevens nearing retirement, the Court is poised for a philosophical shift when the next President and Senate fill these seats. And with Justice Scalia an unlikely candidate to be the next Chief Justice, were a conservative President to be elected, an opportunity might present itself for Justice Thomas to step up as a seasoned, principled candidate for the position. Reading Gerber’s near-definitive work offers a glimpse of an “originalist” jurisprudence that could restore the principles and structure of the Constitution to their former glory.

Lucas E. Morel is Assistant Professor of Political Science and History at John Brown University in Arkansas and an adjunct fellow of the Claremont Institute.