Happy Ninth, Justice Thomas

by Myles Kantor

When 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.

Thomas’s federalism jurisprudence best illustrates his constitutional fidelity. Several cases stand out in this area, but I’ll focus on just two:

US 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.)

Thomas’s 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."

The 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?)

The 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.

A 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 organic law:

"The 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."

Thomas again shows himself to be in a league of his own.

In 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 white peers.)

On 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.

October 24, 2000

Myles Kantor lives in Boynton Beach, Florida.