I am no lawyer but I probably should have been because I am a pedant and can argue any side with conviction. But I’ve read enough fiction and history to know that what legal scholars call “originalism” is a load of codswallop. If I were to argue in an essay for a literature class that we cannot seriously interpret, say, Conrad’s Nostromo or Eliot’s “Gerontion” without studying the intentions of the writer and confining ourselves to What The Words mean, I would not only produce an essay of embarrassing brevity but bore my readers as soon as soon as they picked themselves off the floor from laughing*. What Charles Evans Hughes once said about the Constitution is as true about it as it is about literature: The Constitution is what we say it is. One of the few points on which Thomas are in agreement is his disdain for stare decisis: if precedent on matters of consequence is incorrect, then correct it. Interpretation is redress. Thomas, however, would cite for intellectual ballast a fidelity to the text of the Constitution and of the Framers. Again, I will not venture too far into theories of jurisprudence for fear of looking like a prat, but consider: are Thomas and (to a lesser extent) Justice Antonin Scalia such empty vessels that their paid appearances before rapt audiences reflect exactly their constitutional views? Or, to put it another way, why does their jurisprudence coincide with the political activism of, to cite three random figures in modern conservatism, Steve Calabresi, Michelle Bachmann, and Ed Meese? (It’s also worth nothing for yuks that Thomas the ultra-Catholic officiated Rush Limbaugh’s marriage to a member of Rush’s harem).
Jeffrey Toobin’s essay on Clarence Thomas’ legal philosophy, such as it is, and wife Virginia Thomas’ vigorous proselytizing on its behalf dismisses the notion — which I too admit is condescending — that Thomas exists as a Scalia hack, a reputation acquired in part after his years of monastic silence during oral argument (he hasn’t asked a question since Donald Rumsfeld ran the Pentagon and Nelly Furtado scored her first #1 single). Thomas, according to Toobin and the delighted conservative jurists and politicians he cites, is in fact the most conservative justice since the days of Willis Van Devanter, Pierce Butler, George Sutherland, and Joseph McReynolds — the quartet known as the Four Horseman of Judicial Reaction who irritated FDR so in the thirties. Toobin:
Scalia is the figure most often associated with this school of thought, but he refers to himself as a “fainthearted originalist.” Scalia means that other factors besides his own understanding of the intent of the framers, most especially the long-established precedents of the Court, influence his judgment on the resolution of constitutional disputes. “If a constitutional line of authority is wrong, he”—Thomas—“would say let’s get it right,” Scalia told a reporter in 2004. “I wouldn’t do that. He does not believe in stare decisis period.” In other words, there is nothing fainthearted about Thomas’s convictions about the meaning of the Constitution.
Thomas’ extra-judicial remarks and writings brim with that special blend of herbs and spices known as right-wing self-pity, in which the victim reminds his audience of not only how poorly liberalism served him while studying in the heart of socialist academe (Yale in Thomas’ case), but how the slings and arrows of outrageous fortune drove him to lead the army of the righteous.
I take Thomas’ point that we — we as in academe, bureaucracies, and other members of the culture industry — take the Ivy League much too seriously. I’m glad he hires clerks from second- and third-tier law schools. But must he keep reminding us of how he writhed in these purgatorial flames? As a symbol of my disillusionment, I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale,” Thomas writes in a passage of his memoir quoted by Toobin. “I never did change my mind about its value.” Reading Jane Mayer’s excellent The Selling of Clarence Thomas a few years ago, I was amazed by the tortured ambivalence with which he regarded his education and job in the Reagan administration: Yale and the EEOC only accepted him because he was black, therefore, he reasons, there’s something wrong with those institutions, with me, or both. Contemptuous of affirmative action because it will not allow black men and women to rise on their merits, he can’t live with the probability that his own extraordinary rise resulted from tokenism, as of course it did, and so what? Thomas Sowell aside, how many black conservatives did National Review endorse?
The best conclusion a sensitive analyst will reach is that in originalism Thomas found a way of thinking about law whose certitudes soothed his doubt and rage. The other conclusion: the Obama Justice Department better have Thomas’ jurisprudential counterpart ready when Ruth Bader Ginsberg retires.
* There’s a reason why most law students majored in English or history.