Review Essay of Henry Mark Holzer's The Supreme Court Opinions of Clarence Thomas, 1991-2006

In an editorial several weeks before the end of the 2006-07 Supreme Court term, The New York Times denounced the jurisprudence of Justice Clarence Thomas. That’s certainly nothing new.

But the good Grey Lady said Thomas has shown “an indifference to suffering” and has refused to push the High Court “in a humane direction.”

What Thomas has shown in his 17 years on the Court could be described many ways, but it cannot accurately be characterized as “indifference to suffering.”

Perhaps it’s a question of who’s doing the suffering. Thomas has written the most explicit descriptions of any justice concerning the notorious partial-birth abortion procedure the Court has considered repeatedly. He’s shown a fine, attentive eye for the effects of “liberal” judicial precedents on life in the real world of American inner cities.

What’s really behind the charge of “indifference” is Thomas’s clarity in rejecting preferred interpretive norms of The New York Times and its allies in American law schools and the judiciary.

In a broad analysis touching on all 350 opinions Clarence Thomas wrote his first 16 terms on the Court, Henry Mark Holzer, formerly of Brooklyn Law School and now working in California, captures all the essentials of what it is about Justice Thomas that makes The New York Times see red.

Professor Holzer has not written a personal biography of Justice Thomas, but an analysis of his jurisprudence. Holzer’s The Supreme Court Opinions of Clarence Thomas, 1991-2006 (McFarland, 2007) is the indispensable launching point for any serious examination of the judicial philosophy of an honorable man and a serious intellect.

Justice Thomas regularly articulates a kind of hostility (probably not too strong a word) toward anti- and extra-constitutional sources of legal precedent in American jurisprudence. He is the justice most consistently and methodically focused on the limits of government power, the constitutional role and function of the three branches of the federal government, and competing claims of state and federal jurisdiction.

In short, Clarence Thomas is the justice the most like James Madison, and the least like The New York Times editorial board.

The Times’ editorial writers grew even more frustrated with Thomas and the new conservative-leaning Court majority after the recent 2006-07 term, when justices limited the use of race in public school assignments, allowed school choice programs to move forward, restricted lawsuits targeting business decisions and, in general, incrementally limited the reach of federal judicial power.

Holzer's book deals with Thomas’s entire Supreme Court career before this most recent term, and it is a magnificent work of scholarship.

Sketches of some key Thomas decisions, from the context Holzer gives, follow.

In U.S. v. Lopez, Justice Thomas told colleagues the Supreme Court has encouraged the federal government to believe “that the Commerce Clause has virtually no limits.” He said that until precedents in the area are revisited, “we will continue to see Congress appropriating state ... powers under the guise of regulating commerce.”

In U.S. Term Limits v. Thornton, dealing with state powers to limit congressional terms, Thomas cited the plain text of the Tenth Amendment to defend his analysis limiting federal power, and pointed out the U.S. Constitution is largely neutral on the exercise of state powers by legislatures or the people: “[I]t is up to the various state constitutions to declare which powers the people of each state have delegated to their state government.”

In free speech cases, he is the most consistent justice when it comes to protection of core political speech, arguing it is “the lifeblood of a self-governing people.” In a major Federal Election Commission (FEC) case, Thomas expressed bafflement “that the Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend.”

Further, Justice Thomas is unapologetically dubious about claims that commercial speech has lesser value than noncommercial speech.

What binds these varied opinions is his concern for appropriate constitutional governance and limited government. Political labels like conservative, liberal, and libertarian are handy, but inadequate, when it comes to constitutional analysis, but they are the coins of the analytical realm.

For the sake of such shorthand, Clarence Thomas is what Holzer dubs him: the conservative’s conservative. When it comes to the Framers’ design for limited government and separated powers, Thomas does not think American jurists should make it up as they go along. He doesn’t believe smart judges should solve problems for us. He thinks Americans should customarily solve their own problems in appropriate political forums, and rarely in courts.

All this is not to say that Thomas is incapable of drawing upon an apt extra-judicial text to make a point.

For example, when Thomas dissented in the Kelo case, the Court’s infamous decision expanding the ability of local governments to seize private property, his constitutional arguments were powerful. He concluded that if “economic development” takings “are for a ‘public use’ any taking is, and the Court has erased the Public Use Clause from our Constitution.”

In “dicta” (commentary not necessarily related to his core legal conclusions), Thomas said the consequences of the decision “promise to be harmful.” He noted, without fear of contradiction, that historic “urban renewal” programs displaced minority and poor communities.

Such communities, Thomas observed, are “the least politically powerful.” He commented that those with disproportionate influence and power could use the precedent “to victimize the weak.” Thomas then cited a string of apt examples of negative impacts on “the weak,” noting the destruction of predominantly minority communities as a result of public works projects in the 1950s and 1960s.

As for pushing the Court “in a humane direction,” Justice Thomas has a notable libertarian sympathy that should, but probably never will, be credited by commentators like The New York Times.

In Virginia v. Black, Thomas reflected concern over a majority “speech” opinion. He asked them to consider the actual effect of Ku Klux Klan cross burning, saying erection of “such a cross is a political act, not a Christian one.” He argued, sensibly, that cross burning was action, not protected speech: “[J]ust as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.”

In Georgia v. McCollum, Thomas opposed colleagues when they eroded the ability of defense counsel to make peremptory strikes in jury selection, because that would weaken institutional protections for fair trials. He dissented in a case (Gonzales v. Raich) involving prosecution of those who possessed home-grown marijuana, because the case weakened what he viewed as a proper reading of the Commerce Clause and would allow Congress to “regulate virtually anything.”

Holzer’s book is well-organized. His analysis builds on constitutional case law flowing from the structure of the U.S. Constitution itself—and majority, concurring, and dissenting opinions from Justice Thomas on the same. You can read Holzer’s book, or as many of the cases as you wish, and decide for yourself.

Justice Thomas has built “an unambiguous and distinguished record,” Holzer argues. He is “a thoughtful conservative who understands the role of a Supreme Court justice, the methodology of proper constitutional and statutory adjudication, and the appropriate resolution of the many issues that have come to the Court during his tenure.”

“More than any other member of the Court in modern times Thomas has kept the constitutional faith,” Holzer writes. He deems Thomas “The Keeper of the Flame” for constitutionalism, a man who has shown “uncompromising fealty to those founding documents, to those who mid-wifed their birth, and to the political explosions to which they gave life.”

These are strong opinions, with which I happen to agree. They are opinions thoroughly documented in the historical record, and in lengthy direct quotes that form the bulk of Holzer’s book.

Agree with him or not, Justice Thomas deserves the kind of serious analysis and presentation Professor Holzer has given in his magisterial work. Thankfully, Clarence Thomas has shown himself a man of principle, a disciplined and dedicated exponent of judicial restraint and constructionism, the philosophy of “originalism” as old as the Republic.