November 17, 2016 | Commentary on Rule of Law
Why do media polemicists such as Jeffrey Toobin continue their uninformed, unfair, and vitriolic attacks on Justice Clarence Thomas as he celebrates his 25th anniversary on the Supreme Court? Because all of their vicious, contemptuous criticism over the past two decades has done absolutely nothing to dissuade this great justice from upholding the Constitution and enforcing its guarantees of individual rights and liberties. Nothing has moderated his drive to uphold its limitations on the power of government, as originally understood and intended by the Framers.
Justice Thomas spoke at The Heritage Foundation recently for the annual Joseph Story Distinguished Lecture, where he was introduced by President Ronald Reagan’s former Attorney General Edwin Meese. That lecture showcased not only the intellectual talents that are obvious in his lucid, detailed, and easily-understood opinions, but also his common sense, good humor, and humility. All could admire his staunch unwillingness to allow the progressive politics of Washington and the media world deter him from doing what he thinks is right.
Many of Justice Thomas’s former law clerks, as well as other lawyers and well-respected legal analysts, have assailed Toobin for his latest attack on Thomas. As Damon Root correctly characterized it at Reason.com, it is one of “the dumbest” attacks yet on Thomas by someone who “has a bad habit of disregarding the truth when it comes to writing about” the justice. As just one example, in 2014 Toobin said that Thomas was an embarrassment because Toobin falsely claimed the justice was supposedly often half-asleep during oral arguments before the Court. I attend oral arguments all the time and that claim by Toobin is a figment of his imagination.
But more importantly, anyone with an actual knowledge of the Court, its decisions, and what goes on inside the Supreme Court building knows that Toobin’s claim that Thomas is just an unimportant, minor player is manifestly wrong. As Thomas’s former law clerk, Jennifer Bandy pointed out, that is just “nonsense.”
Jan Crawford Greenburg explained in great detail in her 2007 book, “Supreme Conflict: The Inside Story for Control of the United States Supreme Court,” that Justice Thomas “has been a significant factor in shaping the direction and decisions of the court” since his very first week as a new and very junior justice. Unlike Toobin’s unsupported ruminations, Greenburg based her conclusions on actual documentary evidence of what goes on inside the Supreme Court — the personal papers of Justice Harry Blackmun.
Tom Goldstein, the founder of SCOTUS blog, which covers the Court and its decisions extensively, admitted in 2009 that while he disagreed with Justice Thomas’s views on many public policy issues, “if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest justice.”
There is a reason that former President George W. Bush said that he wanted justices on the Supreme Court in “the mold of Thomas and Scalia.” Because he wanted justices who would actually apply the law and the Constitution, as written as opposed to twisting, rewriting, and bending that great document to implement their ideological views of what public policy should be. Or to create non-existent rights out of the “penumbras” of the Constitution where they don’t exist, thus circumventing the legislative process. Thomas, thank goodness, does not believe in the “living” Constitution that commentators such as Toobin want, which is exactly what irks his critics so much.
Toobin can’t even get the basics correct. He criticizes Thomas for not writing the majority opinions in important cases such as Shelby County, Heller, or Citizens United, claiming that shows that Chief Justice John Roberts doesn’t trust Thomas. Toobin is apparently unaware that opinions are assigned by the chief or the most senior justice in the majority. So it is no surprise that the senior justices would assign themselves to write important decisions. That is no doubt why the chief wrote Shelby himself and that Scalia and Kennedy, both of whom are senior to Thomas, wrote Heller and Citizens United, respectively.
As Adam White of the Hoover Institute pointed out, Toobin brushes by the fact that Thomas has written the majority opinion in literally dozens of cases. White says that Toobin apparently does not believe that the majority opinions written by Thomas on questions of state sovereignty, the First Amendment, antitrust, and administrative law — in a time when we are being overwhelmed by the regulatory power of administrative agencies — are “important.”
It is certainly true that Thomas did not write the majority opinion in Obergefell, the same-sex marriage case. But that is because Justice Thomas stuck to his principles and refused to create a right found nowhere in the Constitution. In fact, Thomas has written many dissenting opinions, something Toobin also criticizes as supposedly putting him in the “distant fringe,” that in many instances have shaped and changed the Court in later cases. As White says, Thomas’s “body of dissents and concurrences have carved a path for an entire generation of originalist (or “textualist”) judges writing opinions in the federal and state courts, not to mention a generation of conservative lawyers who write the briefs and argue cases before them.” That is an influence that Toobin also no doubt resents.
I was particularly struck by two things Justice Thomas said at the Heritage Lecture. First, when he said that many see the separation of powers doctrine set out in the Constitution as some kind of general concept about the organization of the government instead of understanding its primary purpose — to preserve individual liberty. Second, Thomas is sometimes criticized for not being as wedded to stare decisis as other judges when he has urged that prior decisions of the Court be overturned. But as he said, “The Constitution is the ultimate stare decisis.” That is why prior decisions that do not adhere to the Constitution should be overturned. If we didn’t do that, then Dred Scott and Plessy v. Ferguson would still be the law of the land.
On the wall of Justice Thomas’s office hangs the Catholic prayer for humility. That prayer calls on individuals to be delivered from the desire to be extolled, honored, praised, consulted, and approved; and delivered from the fear of being humiliated, despised, rebuked, calumniated, ridiculed and wronged. That says a lot about this justice and why his honesty, humility, intellectual prowess, and willingness to adhere to his principles in the face of hostility and hate are so admired by all of those who know him personally and know his work on the Supreme Court. Those traits and his principled approach to everything he does are things that Jeffrey Toobin will never understand.
This piece first appeared in the Conservative Review.