The faux originalism of Justice Clarence Thomas.

The law, lawyers, and the court.
Aug. 1 2007 5:16 PM

Originalist Sins

The faux originalism of Justice Clarence Thomas.

Clarence Thomas. Click image to expand.
Supreme Court Justice Clarence Thomas

Jan Crawford Greenburg, in her recent book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, has—along with several other Supreme Court commentators—demolished the once broadly held view that Justice Clarence Thomas simply follows the lead of Justice Antonin Scalia. Indeed, if Greenburg's book is to be believed, it's closer to the other way around. With this appropriate reassessment of Thomas' intellectual role on the Supreme Court, a broader claim has been advanced by his supporters that Thomas is a model originalist: a principled justice with a fixed judicial method. He is more radical than Scalia—even his supporters will admit that—but that is simply because he is so principled, they contend. Whereas Scalia will dilute his originalism with a dollop of stare decisis, Thomas likes his served straight up, even if it means upsetting decades of settled precedent.

This notion that Thomas is radical but principled is half right. To be precise, the first half is right: He is radical. But he does not seem very principled. Consider just two cases from the end of this past term, both involving public schools. One was Morse v. Frederick, the so-called "Bong Hits 4 Jesus" case, and the other was Parents Involved v. Seattle Schools, the voluntary integration case. Thomas wrote a concurring opinion in both cases. In the first, he made the bold claim that students simply do not have any right to free speech in school. Why? Because those who framed the relevant constitutional language would not have expected students to have First Amendment rights while in school.

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This is an extraordinary claim for many reasons, not the least of which is the fact that public schools did not exist when the First Amendment was drafted. Even by the time the 14th Amendment was adopted, making the First Amendment applicable to the states, public schools were just getting started. Few students attended school for more than five years; public high schools were virtually nonexistent; and compulsory education was still decades away. Despite the vast differences between public education then and public education today, Justice Thomas evidently believes the question of whether students have free-speech rights should be answered by conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers, who should be asked: Do you think public-school students have a constitutional right to free speech while in school? This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?

What is noteworthy in his Morse concurrence is that Justice Thomas does not ask what the language of the First Amendment means, either now, when it was originally drafted, or when it was applied against the states through the 14th Amendment. Instead, he asks how those alive at the relevant time would have applied that language to a set of facts different than we face today. This elevates the expectations of the ratifiers and Framers over the meaning of the text itself. But the meaning of the text—as Justice Thomas surely would agree—must be paramount over the subjective expectations of any individual, whether alive or dead. Indeed, it is for this very reason that even most conservatives who claim to adhere to the interpretive theory of originalism disavow the séance approach, despite continuing to practice it when convenient.

But it gets worse for Justice Thomas, considering the second school case, this one about voluntary integration. Thomas also wrote a concurring opinion in that case, in which he lambasted those who try to integrate public schools, calling school integration an elitist fad. He also claimed that using race to integrate schools was obviously unconstitutional and made an impassioned argument in favor of colorblindness—the idea that governments can never take race into account, even to protect or assist minorities.

But guess what's missing entirely from this sweeping opinion? That's right: any consideration, whatsoever, of how the Framers and ratifiers of the Equal Protection Clause of the 14th Amendment would have viewed voluntary integration of public schools. The touchstone originalism of his Morse opinion is nowhere to be found.

It may be too much to expect any individual justice to be perfectly consistent from year to year and across a diverse array of cases. But here we have two public-school cases, both involving the rights of students, and both decided within days of each other, with Justice Thomas writing concurring opinions in each case, concurrences that no other justices joined. Don't you think that someone, somewhere, might have asked Thomas: "Um, so you ask what the Framers would have thought about speech in school but not what they would have thought about voluntary integration. Why not?"

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