Updated at 2:53 p.m. ET on March 7, 2019.
February is a slow, miserable slog, but late last month Justice Clarence Thomas was having the time of his life. As Adam Liptak lays out in Tuesday’s New York Times, in a two-week period, Thomas managed to attack the basis of American press freedom and negate the right to appointed counsel for criminal defendants. He also casually suggested that the Supreme Court redo not only Roe v. Wade but virtually all its individual-rights decisions since at least 1938. Even this most radical of justices has scored a personal best.
No one can say he wasn’t aiming high. New York Times v. Sullivan, the press-freedom case he dismissed as wrongly decided, has been reaffirmed and extended countless times since its ruling was issued in 1964, by justices on both sides of the ideological divide. The same is true of Gideon v. Wainwright, the 1963 case holding that the Sixth Amendment’s right to “assistance of counsel” requires states to provide appointed lawyers for indigent defendants charged with most crimes. These are not strange outlier decisions, or relics of an unenlightened past, but—in my opinion at least—“super precedents,” a term coined by former Fourth Circuit Judge J. Michael Luttig. There’s no universal list of super precedents, but everyone agrees that such cases exist. The University of North Carolina law professor Michael Gerhardt, an authority on Supreme Court uses of precedent, defines the status this way:
Super precedents are the doctrinal, or decisional, foundations for subsequent lines of judicial decisions (often but not always in more than one area of constitutional law). Super precedents are those constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time. Super precedents are deeply embedded into our law and lives through the subsequent activities of the other branches. Super precedents seep into the public consciousness, and become a fixture of the legal framework.
What’s going on with Thomas? What makes him tick? This justice defies easy assessment. His influence is not nil; but given that he’s sat on the court for nearly three decades, he has produced very few significant opinions—majorities or dissents. His judicial philosophy is unusual, a brand of “originalism” that purports to find the “original public meaning” of constitutional provisions in an eccentric jumble of American and British sources. For example, he explained his vote in the same-sex marriage cases as flowing from the medieval Latin of the Magna Carta; in Brown v. Entertainment Merchants Association, he argued that the First Amendment allows states to ban sales of violent video games to minors by drawing on principles for Christian parents laid out in the Puritan Cotton Mather’s 1699 child-rearing manual, A Family Well-Ordered.
So idiosyncratic is his approach that he often found himself at odds with the godfather of judicial originalism, the late Justice Antonin Scalia. Scalia, it’s been reported, took a slap at Thomas in his famous statement that “I am an originalist, but I am not a nut.” The conservative legal movement, while praising Thomas on ceremonial occasions, tends to both quote and follow Scalia.
This lack of impact doesn’t—as some observers think—arise from disengagement. Anyone who watches Thomas on the bench day after day knows that, though he does not speak, he follows arguments intently, frequently sending a court page to fetch a case reporter or whispering busily to his bench neighbor, Justice Stephen G. Breyer. It also doesn’t come from any lack of popularity; within the building, from the cafeteria to the conference chamber, he is clearly among friends.
Nonetheless, Thomas has until recently attracted few votes for his favorite causes. (Justice Neil Gorsuch has begun concurring with him on some of his solo flights.*) For years he has pushed the Court to expand gun rights, for example. In District of Columbia v. Heller and McDonald v. City of Chicago, the conservative majority did so—but not according to Thomas’s sweeping theory, which is that the Second Amendment’s “right to bear arms” should have precisely the same scope as the First Amendment’s “freedom of speech.” He has repeatedly called for overruling key precedents—arguing, for example, that the Court should invalidate federal economic regulation that reaches anything beyond the sale or purchase of goods across state lines, or that the First Amendment’s Establishment Clause should not apply to the states. The majority has declined to oblige.
In one Church-state case, Thomas dismissed writings by James Madison, the father of both the Constitution and the Establishment Clause, as representing “extreme notions of the separation of church and state.” He added that “the views of one man do not establish the original understanding of the First Amendment.”
That’s a remarkably telling statement. First, calling Madison an extremist takes a level of chutzpah few judges have hitherto been able to muster. Second, it takes self-delusion: Thomas believes that proposition about James Madison—but he rejects it about himself. Like Madison, he is only “one man;” but, unlike Madison or anyone else, he repeatedly finds that he alone has the insight, gleaned from direct access to the minds of the Framers, to establish single-handedly the “original understanding” of all parts of the Constitution.
And that’s my critique of Thomas on the bench, which I have made before. He’s in the wrong line of work. The “I know best about everything” attitude is excusable (though annoying) in a law professor, whose views cut no real-world ice with anyone, but they ill-become a judge.
Good judges know what they must decide and what they need not. The late Judge John Butzner Jr. of the Fourth Circuit, for whom I clerked a quarter century ago, used to tell each new clerk, “Don’t talk to me about the law until you understand the facts.” Very often, we found, the broad questions that a case seemed to present vanished when we looked at what actually gave rise to the dispute.
Good judges also listen to both parties. Former Justice Anthony Kennedy used to ask advocates, “What’s your strongest case?,” which gave them a chance to bring their best argument to the Court’s attention.
Judges must have the self-discipline to respect the limits of their role. Deciding only the case before you—whether that changes the law or simply reaffirms it—is a key judicial virtue. “God has a terrible problem,” runs the old joke. “He thinks he’s a federal judge.” But a judge is not God, just a public employee elected by nobody. Judges who don’t limit their ambitions accordingly betray the oath.
Finally, judges might need to frustrate not only the wishes of the powerful (including those who pick judges and those who may promote them) but also the yearnings of the powerless, who might have equity and justice, but not law, on their side.
Armed with these qualities, what tools does a good judge use? Here, I think, is the difference between the judicial mind and others. When parties enter federal courts, they are entering an arena governed by 230 years of federal precedent. That almost quarter millennium of law represents the collective wisdom of thousands of trial and appellate judges, supervised over the centuries by 114 Supreme Court justices. A judge’s job is to apply that precedent to new facts—and explain convincingly why a given result flows from it, or why courts should in this case break with it.
When cases are unworkable or incoherent, for example, because of later legal developments, or when they have consistently led to unjust or absurd results, judges may conclude that they should be overturned. But “I read Blackstone last night, and I know better than all of them” is not one of those unusual circumstances.
Uncharitable as this might seem, Thomas has begun to remind me of Vizzini, the ill-fated Sicilian mastermind in The Princess Bride: “Have you ever heard of Plato, Aristotle, Socrates? … Morons!” John Marshall, Oliver Wendell Holmes Jr., Harlan Fiske Stone, Hugo Black, William J. Brennan, Lewis F. Powell Jr., Sandra Day O’Connor, and even Scalia might have contributed to a complex body of precedent. But Clarence Thomas and Clarence Thomas alone knows the real answer, gleaned directly from the minds of the Framers.
I do not doubt the man’s intelligence or sincerity; but the claim of authority is outlandish, and verges on the delusional.
* This article originally stated that both Justices Neil Gorsuch and Brett Kavanaugh have begun concurring with Justice Clarence Thomas on his opinions. In fact, only Gorsuch has joined Thomas. We regret the error.