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.