Original Thomas, Conventional Souter: What Kind of Justices Should the Next President Pick?

Article excerpt

The 1994 term of the Supreme Court cast into stark relief the performances of Justices Clarence Thomas and David Souter. Justice Thomas emerged as the boldest member of the Court in half a century--a jurist committed to seeking the original meaning of the Constitution in lengthy and learned opinions that survey the vast scope of American constitutional history. On the other hand, Justice Souter, while continuing his move to the Court's liberal wing, tended to write jejune opinions seemingly intent on avoiding the central issues of the case. It is as if Thomas and Souter keep alive in the public sphere the paradoxical qualities of the president who appointed them both. Thomas re resents the bold and fearless George Bush who prosecuted the Gulf War and stood by Thomas in his contentious confirmation hearings, while Souter represents the reticent George Bush who was inattentive to conservative principles in many areas of domestic policy.

Given the excellent prospects in 1996 for a new president inclined to appoint conservative justices, it is appropriate to analyze the differences between these justices to aid the new president in choosing nominees in the mold of Thomas rather than Souter. I then propose a few criteria for choosing the next nominee that will maximize the chances of selecting an outstanding justice who will help ensure principled constitutional governance into the next century.

Liberal and conservative commentators alike agree on one proposition about the most recent Supreme Court term: Thomas became a force to be reckoned with. Tony Mauro, a liberal Court watcher, wrote of Thomas's "bold and searching" opinions. Burt Neuborne, a professor at New York University Law School and the former director of the ACLU, was struck by Justice Thomas's "vigorous tone" in his many "interesting and important opinions." James Kilpatrick wrote of his "masterly" work. George Will gave what may be a conservative's highest accolade for a judge: Thomas's opinions, he wrote, were "Borkean."

Indeed, the most striking characteristic of Thomas's opinions was one he shares with Judge Robert Bork--a willingness to go back to first principles to uncover the meaning of the Constitution. In case after case where the original meaning of the Constitution was put in issue by the litigants or other justices, such as those involving term limits, the extent of Congress's authority under the Commerce Clause, and the protection afforded anonymous pamphlets under the First Amendment, Thomas wrote magisterial opinions that investigated the original understanding of the Constitution in detail. To be sure, not all of his opinions investigated all possible originalist angles of a case. But this is only to be expected, given the way issues are framed on the Court. Thomas is not a law professor, completely at liberty to approach every case without reference to the framework in which his colleagues or the litigants are operating. Nevertheless, his opinions undoubtedly represent the most impressive set of originalist opinions ever written by a Supreme Court justice within a single term.

Thomas's opinion in U.S. Term Limits v. Thornton was emblematic of his approach. The issue in the case was whether the states could preclude individuals who had served a certain number of terms as a senator or member of the House of Representatives from again appearing on the ballot for that office. The Constitution sets out certain qualifications for both representatives and senators. For instance, as to members of the House of Representatives, the Constitution provides, "No Person shall be a Representative who shall not have attained to the Age of twenty five Years and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

The analysis in the majority opinion in Thornton rested on the proposition that these qualifications were exclusive. It held that term limits were unconstitutional because state law could not add qualifications relating to the number of terms a candidate had previously served. …