His dissent in Obergefell, the same-sex marriage case, was an extreme example of the genre. Thomas did not even mention the key gay-rights precedents, Romer v. Evans, Lawrence v. Texas, and United States v. Windsor; instead, he mashed up John Locke, Magna Carta, 18th-century British legal philosophy, natural law, and the Declaration of Independence.
“Never before has a Supreme Court justice cited the Declaration so frequently,” Scott Douglas Gerber of Ohio Northern University, a leading student of Thomas’s jurisprudence, wrote after the decision. True. Why not? Well, maybe because the Declaration of Independence is not actually a source of law, any more than is Locke’s Second Treatise of Government or a “1756 editorial in the Boston Gazette.” Thomas, consulting these “sources,” concluded that “liberty” means one thing only—“freedom from physical restraint.” It’s a perfectly logical argument—if one concludes that every “due process” liberty case ever decided is wrong. Under the new Thomas rule, the same-sex couples in Obergefell had not been injured, because they had not been “imprisoned or physically restrained by the States for participating in same-sex relationships.” They could even, he noted, hold same-sex wedding ceremonies if they really wanted to; the state would not recognize the resulting unions, but that was of no concern to the Constitution. In fact, he suggested, the challengers were not claiming basic constitutional rights at all but rather, like greedy welfare recipients, demanding undeserved “governmental recognition and benefits.”
Thomas receives a lot of unmerited criticism. Critics disparage his intelligence; but read enough of his work and that illusion becomes unsupportable. He is not disengaged on the bench; indeed, he follows oral argument carefully, if silently. He is clearly on good terms with his colleagues, and is a beloved figure within the small world of Court personnel.
He has, of course, scarcely bothered to conceal his bitterness at what happened in his confirmation hearings. Other giants of the bench, however, went through difficult confirmations and then, to use a phrase of Justice Scalia’s, got over it.
Louis D. Brandeis faced four months of delay in confirmation, during which his ethics, character, and religion were cruelly disparaged by legal figures including a former president and a former secretary of state. Hugo Black, between the time of his confirmation and the opening of the Court’s October term, was revealed to have been a member of the Ku Klux Klan—and to have at the very least misled his supporters about that fact. Before taking the bench, Black was forced to take to the radio to reassure the public that he had foresworn racial terror.
Thurgood Marshall was nominated to the Second Circuit in 1962; Southern Democrats, raising spurious ethics charges, delayed his confirmation for a year. When Lyndon Johnson nominated Marshall to the Supreme Court, Sen. Strom Thurmond suggested to his face that this first black nominee was unfit to serve because he was ignorant of the law and the Constitution.