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.

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?"

Here's our guess: The question is not asked because it does not yield an answer Justice Thomas would like. There is no way to make an argument, at least with a straight face, that the 14th Amendment was originally understood to prohibit voluntary school integration. No way. Indeed, given how flimsy the evidence is for Justice Thomas' other argument—that students have no free-speech rights in school—it's clear that he is not shy about stitching together a historical tale from very slim pieces of material. The fact that he doesn't even try to make the historical case in the voluntary integration decision speaks volumes.

What it says is that Justice Thomas is not particularly principled. To be clear, this is not a criticism of Thomas as a person. We're not saying that he's mean or doesn't like dogs or small children. We're criticizing his work, much in the same way Scalia recently criticized Chief Justice John Roberts for his "faux" judicial restraint. Our criticism is similar: Justice Thomas is not sticking with his professed commitment to originalism, and is certainly not living up to his newfound reputation as the high priest of principled originalism.

His recent opinions instead suggest that Thomas will use originalism where it provides support for a politically conservative result, even if that support is weak, as it is in the student-speech case. But where history provides no support, he's likely to ignore it altogether. If his cheerleaders believe otherwise, they should try to reconcile his opinions in the two school cases on originalist grounds.

While they are at it, they might also try to explain a third case from the end of this past term: FEC v. Wisconsin Right to Life. This was also a free-speech case, decided the same day as the student-speech case. This case dealt with provisions of the McCain-Feingold Bipartisan Campaign Reform Act, a law that regulates issue ads paid for by corporations and unions. Unlike public schools, corporations did exist when the Constitution was originally ratified, and through the opinions of Chief Justice John Marshall, we have a pretty good idea about how the Framing generation tended to view corporations: They are, in Marshall's words: "an artificial being, invisible, intangible, and existing only in contemplation of the law."

In 1990, the Supreme Court in Austin v. Michigan Chamber of Commerce echoed Marshall's views by concluding that "the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures [by corporations]." Nonetheless, after concluding in Morse that students in public school have no free-speech rights, Thomas joined an opinion by Scalia calling Austin"wrongly decided" and endorsing the proposition that corporations should have precisely the same speech rights as individuals. Again, there was no inquiry into original understanding, no Morse-like probe into what the Framers would have wished.

For someone lauded as the originalist's originalist, this is a pretty weak showing. For someone looking to advance a conservative political agenda, however, these three cases constitute a sort of trifecta: Curtail voluntary integration and student rights while boosting the rights of corporations. Not a bad couple of weeks.

There is a lesson here for liberals. In two of the three most important cases of the past term, Thomas was forced to abandon originalism—his version of it, anyway—in order to reach a politically conservative result. In the other, his originalist reasoning was weak at best. What this suggests is that, contrary to conventional wisdom, originalism may not be co-extensive with the Republican Party platform after all. It also suggests, as we've written elsewhere, that liberals ought to begin to take a closer look at text and history themselves.

Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

Jim Ryan is the William L.. Matheson & Robert M. Morgenthau distinguished professor of law at the University of Virginia School of Law.