Articles about Thomas's Jurisprudence

Far from being an embarrassment to the Supreme Court, Thomas is contributing some of its most forceful and learned opinions. Even more remarkable, perhaps, is his willingness to go against the prevailing constitutional wisdom. Race probably did play some part in his selection. But by the time he retires, the general assessment will doubtless be that he was one of the most influential justices of his time.

Justice Thomas and Mr. Jefferson
Yes to the Declaration, no to affirmative action

Scott D. Gerber
Legal Times
05-09-2003

Clarence Thomas has said more about affirmative action than any other member of the U.S. Supreme Court. That shouldn't be surprising. After all, Thomas chaired the U.S. Equal Employment Opportunity Commission for almost a decade prior to becoming a judge. Thomas is, of course, the only African-American member of the Court, although he himself takes a color-blind approach to civil rights law. This makes his views about affirmative action in general, and the pending University of Michigan admissions cases in particular, of extraordinary interest to many Court watchers.

Thomas' law review articles, speeches and Supreme Court opinions shed considerable light on how he is likely to vote in the Michigan cases: against the admissions programs. It's not difficult to understand why -- the group-based classifications at the heart of the programs run counter to the individual rights principles of the Declaration of Independence.

John Foster-Bey discusses the disrespect that Justice Thomas receives in some quarters, including (unfortunately) many blacks. He concludes: "The vilification of Justice Thomas by black liberals impoverishes the black community and the nation. His ideas and values represent important contemporary and historical currents in the black community. Too many African-American liberals have translated legitimate differences and debates about policy with Justice Thomas into unjustified character assassination. We should all be beyond that; what is needed is a vigorous and honest debate and exchange of ideas between black conservatives like Justice Thomas, black liberals, and others, not name-calling and vicious personal attacks."

Daniel Troy, an AEI scholar and DC lawyer, deftly dismantles the liberal myth of Thomas as a Scalia clone, discussing the McIntyre case and the Saenz v. Roe case (where Thomas urged a resurrection of the Privileges and Immunities Clause). Great piece.

David Hudson, attorney for the Freedom Forum First Amendment Center, describes Justice Thomas's opinions dealing with commercial speech, showing that here (as elsewhere) it is Justice Thomas who is perhaps the most free-speech-friendly Justice on the Court.

The title of this article by Dylan Carp may be a little misleading, as Thomas was never in Scalia's shadow in the first place (only the most partisan Thomas detractors ever made such a claim). Nonetheless, it's a fairminded look at Thomas's jurisprudence. Carp concludes (correctly):

"[I]n areas such as the First and Second Amendments, Federalism, and the Equal Protection Clause, Thomas has shown that he is significantly more comfortable than any other Justice, including Justice Scalia, in rejecting both tradition and judicial precedent in the search for the original understanding of the Constitution. . . . [I]n many areas of the law Justice Thomas, and not Justice Scalia, marks the front line of originalist jurisprudence."

Though Mauro has been criticized by Justice Scalia as "Mauronic," pun intended, he actually does a fairly good job of explicating some of Thomas's opinions in this op-ed piece. He concludes:

"He is no other justice's unthinking sidekick. . . . Thomas' contribution to the public discourse is undeniable and should not end."

In this piece, Columbia law prof Michael Dorf examines Thomas's jurisprudence as exemplified in two recent cases -- Whitman v. American Trucking Association, and Cook v. Gralike. In the former, Thomas wrote that he would be willing to enforce a more rigorous non-delegation doctrine than the rest of the Court, and in the latter Thomas wrote that the Court should overrule the Term Limits v. Thornton case (big surprise, given Thomas's dissent in that case) so that states could limit the terms of congressional representatives. Dorf's analysis is rather pedestrian, but his conclusion is accurate:

"Justice Thomas's isolation from the rest of the Court on these issues shows that he is not despite the common caricature Justice Scalia's clone. Indeed, in some respects, his disagreement with the Court's vision of representative democracy is as fundamental as the more familiar 5-4 divisions over states' rights, abortion, affirmative action, and the other hot-button issues that the Court confronts."