Ninth, Justice Thomas
historians assess George Bush’s presidency in future years, they’ll
almost surely not find his finest hour in the appointment of Clarence
Thomas to the Supreme Court. (Bush’s anti-conservative enactment
of the Americans with Disabilities Act will likely receive kudos,
though. Who knows, Operation Unjust Cause might even be lauded as
a demonstration of "leadership.") Nevertheless, it was
his best decision in office, as Clarence Thomas is the most nomocratic
justice of our era. More than any member of the Court, Thomas appreciates
the federal character of our republic and the Beltway’s finite mandate.
He has eschewed the doctrinal injection so beloved by many of his
peers, understanding that an electorally exempt elite ought not
trample on self-government.
federalism jurisprudence best illustrates his constitutional fidelity.
Several cases stand out in this area, but I’ll focus on just two:
Term Limits, Inc. v. Thornton (1995) and United States v. Morrison
(2000). Thornton dealt with an amendment to the Arkansas Constitution
that term limited its congressional delegation. The Court struck
down the amendment by a 5-4 vote. (I’ll address the impact of the
majority opinion’s reasoning on the US Senate in a future column.)
dissent is a canonical exposition of the reserved powers upon which
American autonomy depends. Self-government and states’ rights are
intertwined since "The ultimate source of the Constitution’s
authority is the consent of the people of each individual State."
Accordingly, "the notion of popular sovereignty that undergirds
the Constitution" is attenuated by an interventionist judiciary.
Thomas wryly observes in this vein: "The majority defends the
right of the people of Arkansas to ‘choose whom they please to govern
them’ by invalidating a provision that won nearly 60% of the votes
cast in a direct election and that carried every congressional district
in the State." Call it self-government with an asterisk: "Contingent
upon judicial approval."
idea is that that malfeasant adjudication damages popular sovereignty.
When a citizenry’s efforts in exercising self-government are nullified,
there’s an attendant enervation. As political scientist Marshall
DeRosa explains, "[O]ne of the consequences of Supreme Court
activism is a general decrease in political participation, because
Americans intuitively sense that in the final analysis the unelected
life tenured U.S. Supreme Court justices will have the final say."
(The Court yet again nullified self-government this year in Stenberg
v. Carhart, invalidating Nebraska’s prohibition of partial birth
abortions. Thomas wrote in his dissent, "[T]he Court’s abortion
jurisprudence is a particularly virulent strain of constitutional
exegesis." Have we evolved that much since Dred Scott?)
Morrison case dealt with the Commerce Clause in invalidating the
Violence Against Women Act, which provided federal recourse to victims
of gender-motivated violence. From the New(farious) Deal until the
Lopez decision (1995), the Commerce Clause was accepted as the Great
Facilitator for congressional regulation, i.e., erosion of states’
rights and federalism.
whole terminology had been generated in its defense ("substantial
effects," "aggregation principle," "class of
activities"), but even Lopez didn’t bury this bogus paradigm.
In his concise Morrison concurrence, however, Thomas reaffirmed
his view in Lopez that such contrivances are irreconcilable with
majority opinion correctly applies our decision in United States
v. Lopez, 514 U. S. 549 (1995), and I join it in full. I write separately
only to express my view that the very notion of a ‘substantial effects’
test under the Commerce Clause is inconsistent with the original
understanding of Congress’ powers and with this Court’s early Commerce
Clause cases. By continuing to apply this rootless and malleable
standard, however circumscribed, the Court has encouraged the Federal
Government to persist in its view that the Commerce Clause has virtually
no limits. Until this Court replaces its existing Commerce Clause
jurisprudence with a standard more consistent with the original
understanding, we will continue to see Congress appropriating state
police powers under the guise of regulating commerce."
again shows himself to be in a league of his own.
addition to his superb jurisprudence, I’d also note Thomas possesses
a wonderful sardonic wit. "We don’t even know what ‘is’ is
anymore," he remarked during the impeachment fiasco of Clinton
the Crook, succinctly rebuking relativistic idiocy. When he was
recently asked if he still writes his own opinions, Thomas responded,
"No, Justice Scalia does." (The context is that many Thomas-haters
consider him a glorified minstrel dancer for Justice Scalia. This
clashes with case law and is none too embellished racial prejudice,
as if a conservative black justice must be a lackey of like-minded
October 23, Clarence Thomas celebrated his ninth year on the Supreme
Court. While I know it’s not (yet) biologically feasible, I hope
he’s there for ninety more.
Kantor lives in Boynton Beach, Florida.