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
- 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,
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
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
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. …