Clarence Thomas and Jeffrey Toobin

Jeffrey Toobin has made a cottage industry of comprehending the mind of Clarence Thomas, and insofar as he explains how the justice’s jurisprudence differs from the late Antonin Scalia he’s fine:

Far more than even Scalia did, Thomas endorses originalism—the belief that the Constitution should be interpreted as its words were understood at the time it was written. By a vote of 5–3, the Court struck down Texas’s restrictions on abortion clinics in Whole Woman’s Health v. Hellerstedt, but neither of the other dissenters (Roberts and Samuel Alito) joined Thomas’s opinion. What’s most extraordinary about Thomas’s dissenting opinion in the abortion case is not that he objects to the ruling; as he noted, “I remain fundamentally opposed to the Court’s abortion jurisprudence.” But Thomas also took the opportunity to reject more than a century of the Court’s constitutional jurisprudence. He said that, since the Presidency of Franklin D. Roosevelt, the Court’s interpretation of the Constitution has become an “unworkable morass of special exceptions and arbitrary applications.”

The abortion dissent explains why Thomas is so cut off on the Court, even from his fellow-conservatives. He doesn’t respect the Court’s precedents. He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created.

Toobin’s basic point has a couple of holes. If Thomas thinks the precedents are wrong, he should strike them down. A black man in America who came of age in the sixties and early seventies and attended Yale Law School has every reason to despise precedent when they were the Slaugherhouse and Civil Rights cases and Plessy v. Ferguson. Precedent kept Jim Crow and discrimination in commerce intact for decades. It confined black children to fourth-rate schools. His opposition to extending Bill of Rights protections to the states — one of the many constitutional revolutions enacted by FDR’s appointees — would amount to a reversion of the United States to exactly that: a confederation of states assembled by a federal government whose purpose is to wage war when necessary and funded by tax dollars that can fill a cleaning bucket; a society where it’s every man for himself but thanks to the expunging of affirmative action and anti-discrimination laws would mean men of talent would rise on the strength of their own merits, which is what might’ve happened to Thomas in Yale and presumably the Reagan administration if the federal government didn’t have systems in place. I can imagine Thomas nodding when reading Joseph Bradley’s majority opinion in the Civil Rights Cases:

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.

By his reckoning these systems reward mediocre men for political purposes. Gnawing at Thomas is the suspicion that he was one of those mediocre men.

And that’s where I’ll stop my speculations. It’s not my place to explain why I might think a black American who came of age in the sixties and early seventies drew the wrong conclusions.

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