Wednesday, October 26, 2016
I've long thought--along with many others--that Justice Clarence Thomas is one of the most under-appreciated Justices in the history of the Supreme Court of the United States.
Lately, his twenty-fifth anniversary of joining the Court has brought forth a range of commentaries. Not all are worth reading for insight into Justice Thomas as much as they are for insight into authors, editors, and their imagined audiences.
Typical of the under-appreciative genre is Jeffrey Toobin's short New Yorker column: Clarence Thomas's Twenty-Five Years Without Footprints. It might have been more revealing of the editors' evident lack of perspective if they headlined it Invisible Justice. But as Ann Althouse explains, this headline is bad enough.
USA Today's story is better and more detailed, though the headline seems somewhat negative: After 25 years, Clarence Thomas still dissents. Most people may think Justice Thomas's persistent dissent a bad thing, but I happen to find it encouraging.
When go along to get along is not an option, the alternative is alienation. A peculiar form of alienation that we risk, and that Justice Thomas's persistence bucks us up against, is the sense that legal reasoning just doesn't matter to the Supreme Court in certain cases. It's the kind of alienation I--and many others--experienced in the months surrounding Obergefell v. Hodges.
This kind of alienation, whether experienced on the right, left, top, or bottom, corrodes our constitutionalism. But Justice Thomas's patient persistence provides a constructive counter-example.
If you want to understand Clarence Thomas better, a good way to start is by taking his own words seriously. My Grandfather's Son is a great read. But you don't have to wait to get your hands on the book. Just browse on over to the website for one of my favorite podcasts, Conversations with Bill Kristol.
Kristol's conversation with Justice Thomas is worth listening to or viewing. But that can also take time you may not have, in which case you should read the transcript. Here's an exchange that stood out to me as of potential interest to MOJ readers:
KRISTOL: I talk to young people, as you do, and a lot of ones, especially who are more on my side of the political spectrum are sort of depressed these days – and the last term of the Court and what – the constitutional moment seems to have passed, and are we ever going to get back to real constitutionalism, limited government, and a good understanding of the separation of powers and the Constitution in our country? I don’t know. I’m not sure I do a very good job of reassuring them. I do usually cite the dissents that then get vindicated years or decades later, whether it’s Justice Harlan or Justice Scalia or you.
What do you say? Obviously, you’re doing your job as a Justice, so you’re worrying most about getting it right, but are you encouraged, and how do you encourage young people? What is your sort of general view of the current state of constitutional self-government in America? Not so much the Court, but the broader question, you know? You’ve thought a lot about this and spoken a lot —
THOMAS: You know, I don’t know if I’m the – I don’t know. I’m more concerned about other things – the academy, the culture, the state of education.
KRISTOL: Do you feel sometimes that we’re swimming awfully upstream here against awfully big institutions and forces?
THOMAS: I think we are required to swim upstream no matter what it is; I think it’s a matter of principle no matter – My grandfather was that sort of person, that no matter what others were doing or how bad it looked, we had things we were supposed to do.
I think we are required to do what is right despite how bad things look. I don’t know whether or not, I think it was when I was a kid – I’m Catholic, and one of the great sins was to despair. I think that it’s hard to get up in the morning as a despairing person.
You have to be hopeful. You know, I just look around as I was riding to the studio to do this and coming across Pennsylvania Avenue. When I came here in 1979, the prime interest rate in the country was around 20 percent. We were immersed in the Iranian hostage situation. You had inflation that was double digit. It was the era of malaise – I always say “mayonnaise.” I was riding a bus down Pennsylvania Avenue, commuting to Capitol Hill where I worked. Those days Pennsylvania Avenue was open all the way through, and I couldn’t afford to drive a car or anything in.
And the world changes; things change in your life. Was I in a position to despair then? Absolutely. Things weren’t really looking good. But you are obligated not to despair. Now, about our country? Yeah, things may not look good, but we are obligated not to despair. Do I know what the outcome is going to be? No.
Do I know that we are going to be vindicated? No. But that’s not why you do it. You don’t do it to necessarily persuade, to feel that you’re going to persuade other people – you do it because it’s right. I think we are obligated to do that. Do I hope that, at some point, it becomes the, sort of the prevailing view? Yes. But I have no guarantee, and I don’t do it on the condition that I win.