Breaking News: Hell Freezes Over

Or so I assume, given Jeffrey Toobin's amazingly objective New Yorker profile of Clarence and Ginni Thomas:

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. "Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most," Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. "They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction."

Thomas’s intellect and his influence have also been recognized by those who generally disagree with his views. According to Akhil Reed Amar, a professor at Yale Law School, Thomas’s career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court’s history. "Both were Southerners who came to the Court young and with very little judicial experience," Amar said. (Thomas is from Georgia.) "Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case." . .

Like his intellectual heirs in the Tea Party, Thomas has a special hostility for government attempts to level the playing field in the political arena. For this Justice, the Constitution mandates the law of the jungle. When it comes to free speech, Thomas first laid out his views in McIntyre v. Ohio Elections Commission, a case early in his tenure. In 1988, Margaret McIntyre distributed unsigned leaflets at public meetings in a small town in Ohio. According to Ohio election laws, she was required to put her name on any material she distributed, and McIntyre was ultimately fined a hundred dollars for breaking the rule. In a 1995 opinion by John Paul Stevens for a seven-Justice majority, the Court overturned the fine as a violation of McIntyre’s right to free speech. For the Court, Stevens weighed the interest of the state in protecting the integrity of campaigns versus the individual’s right to express herself and concluded that the state’s restrictions went too far.

Thomas wrote a concurring opinion, which laid out a template that he, and to some extent the Court, has since followed. The opinion is an originalist tour de force, with extensive discussion of the practice of anonymous speech as practiced by the framers of the Constitution. "In light of the Framers’ universal practice of publishing anonymous articles and pamphlets," Thomas wrote, it was clear "that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech." This case marked the début of Thomas’s absolutist position on free-speech issues. "I don’t agree with him, but Thomas has the most internally coherent view of any Justice," Richard Hasen, a professor at the School of Law at the University of California at Irvine and the proprietor of a widely read blog on electoral law, said. "His view is that the First Amendment allows virtually no regulation of campaign advertising, campaign contributions, or expenditures. The Court has been moving his way."

Thomas put his position straightforwardly in a dissent to a decision, in 2000, that upheld a Missouri law that limited individual contributions to local campaigns to a total of a thousand and seventy-five dollars. "In my view, the Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade," he wrote. During the past decade, Justice Stephen Breyer has led the way for the other side, arguing in a series of cases (and in two books) that Congress may enact strict campaign-finance laws. As Breyer wrote in his book "Active Liberty," campaign-finance laws reflect the concern that "the few who give in large amounts may have special access to, and therefore influence over, their elected representatives." Breyer asserts that the Constitution permits Congress to limit the influence of these wealthy political insiders.

By 2010, in Citizens United, it had become clear that Thomas was routing Breyer.

In a somewhat overwrought blog post, Walter Russell Mead calls Toobin's article:

[O]ne of the most startling reappraisals to appear in The New Yorker for many years. It is hard to think of other revisions as radical as the declownification of Clarence Thomas. . .

There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill’s testimony at his confirmation hearings. Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher. Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonin Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved.

Though Toobin disagrees with the Justice's originalist view of the Constitution, his take on Thomas is correct. Long-time NOfP readers know I'm a huge Clarence Thomas fan. I think his two-paragraph dissent in Lawrence v. Texas, 539 U.S. 558 (2003), a masterpiece. And about a decade ago, I was lucky enough to be seated next to Justice Thomas at a dinner party--his conviviality, knowledge (not just about law) and insight made it among the best evenings of my life.

Toobin ends his article by highlighting Thomas's well-known and narrow interpretation of the commerce clause (see his concurrence in United States v. Lopez, 514 U.S. 549 (1995)) as a possible predictor of Supreme Court review of Obamacare. Similarly, Mead closes his piece discussing how a Thomas-driven interpretation could turn the Tenth Amendment into an "Amendment of Doom" for living constitution jurisprudence:

It’s hard to argue with Toobin that Thomas has moved the ball down field in his quest for a new era of constitutional jurisprudence. . .

Jeffrey Toobin is announcing to the liberal world that Clarence Thomas has morphed from a comic figure of fun to a determined super-villain who might reverse seventy years of liberal dominance of the federal bench and turn the clock back to 1930 if not 1789.

The fantasy is still far fetched, and it is notoriously hard for political movements to get and hold power long enough to shift the balance on the Supreme Court, but that Thomas has accomplished as much as he has shows how far the country has drifted from the old days when liberals were confident that the Supreme Court would find new ways to fit its judicial philosophy to the demands of the blue social model.

They can no longer count on that; the consequences could be extreme.

Good. Liberals have mocked and under-estimated Justice Thomas for too long. And the only way to preserve our liberties is to interpret the Constitution as not "living"--in other words, we must kill the Constitution in order to save it: "Call for Clarence Thomas, Mr. Justice Clarence Thomas."

(via reader Doug)