Thomas Making Mark in Court Decisions Distinctive, Conservative Judicial Voice Developing

Article excerpt

Clarence Thomas has emerged as a significant voice on the U.S. Supreme Court, where he is the strongest advocate for interpreting the Constitution the way the Framers meant it.

"His work goes a long way to refuting the notion that this is someone who does not have the breadth to be a Supreme Court justice," says Richard J. Lazarus, a law professor at Washington University. "One can disagree with him and think he is misguided, but you cannot read these opinions and think this is someone who does not have the command of legal argument."

Jesse Choper, law professor at the University of California at Berkeley, agrees: "He is not being given sufficient recognition for what he is doing. I think his opinions are generally good."

In four terms on the court, Thomas has developed a distinctive judicial voice:

- He's the most conservative justice on a conservative court. Thomas' constitutional views would reinvigorate states' rights and diminish federal power.

- He's the most consistent advocate of the "originalist" approach that limits the Constitution to its original meaning.

- He's the second most prolific opinion writer this term, even though he continues to be the quietest justice in oral argument.

- He's passionate in his opinion writing, even though he remains passionless on the bench.

- He's a firm believer in "textualism," insisting, like soulmate Antonin Scalia, that words be given their plain, dictionary meanings.

Rumors have circulated that Thomas relies on Scalia or law clerks for his opinions. Choper, himself a former clerk, says that "law clerks do a lot for a lot of justices" but that justices should get credit for opinions.

Thomas characteristically made heavy use of his dictionaries and history texts in three recent opinions notable for their originalist approach.

On April 19, Thomas joined a 7-2 majority in striking down a state law regulating anonymous leaflets. The other justices in the majority based their decision on the "honorable tradition" of anonymous speech.

Thomas disagreed with their reasoning, saying that the original understanding of the First Amendment, not tradition, was what mattered. He quoted a 1905 Supreme Court decision: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now."

***** Not Far Enough

Then, on April 26, Thomas wrote a separate opinion as part of the majority in U.S. vs. Lopez. The court ruled 5-4 that Congress had exceeded its power under the Commerce Clause by passing a federal law against carrying a gun near a school.

Chief Justice William H. Rehnquist's majority opinion was the first time in 60 years that the court had struck down congressional exercise of its commerce powers. Yet Thomas thought Rehnquist hadn't gone far enough.

Citing definitions from four dictionaries, Thomas argued that the Framers didn't consider "manufacturing" as "commerce."

If Thomas' original understanding were adopted by the court, all sorts of legislation passed since the New Deal could be out the window - the Fair Labor Standards Act, the Minimum Wage Act and the National Labor Relations Act, to name three.

Thomas' interpretation of commerce might also threaten the Civil Rights Act of 1964, passed under Congress' commerce powers.

No one joined Thomas in Lopez. But he came within one vote of a majority in U.S. Term Limits vs. Thornton, in which the court struck down terms limits on members of Congress. …