Clarence Thomas, an American Justice

By John Yoo

Saturday, October 23, 2021

 

I first met Justice Clarence Thomas in June 1992, at the end of his first year on the Supreme Court. He was interviewing me, a 25-year-old fresh out of law school, for a clerkship job. He found me to have strong opinions and little experience. Revealing an early wisdom, he hired someone else. Displaying his generosity, he changed his mind a year later.

 

The interview remains indelible in my memory, as meetings with Justice Thomas probably do for most everyone. I was expecting a grilling about interpretive theories, the importance (or not) of past decisions, or his early opinions and speeches — through which he had already made a mark in demanding a return to the natural rights of the Declaration of Independence. I even thought he might raise the injustices of his bruising 1991 confirmation hearings.

 

Instead we had a long conversation about our families. We talked about our parents and grandparents, the sacrifices they had made for their children, and the hopes they held for the future. As I sat there, I couldn’t stop thinking about the remarkable circumstances of our encounter. Here he was, a man born in Georgia to a black family under segregation, talking with me, born half a world away in Seoul, South Korea, at that time a desperately poor nation, where Americans had fought a bitter war. Only in America could the two of us end up meeting in the chambers of the most powerful court, in the most powerful country in the history of the world.

 

I bet that Justice Thomas found the circumstances remarkable too — not because sitting at the desk of a Supreme Court justice marked his talents and achievements, but because it reminded a humble man of the immense task before him. Even then, I thought that Justice Thomas viewed that task as the work of building. Some judges delight in approaching each case as a puzzle to be figured out. Justice Thomas, however, had broader designs in mind. He uses a few cases each year to make progress toward his larger project. Three decades later, he can look upon a work still unfinished, but with the foundations in place and the more daring elements reaching upward. The question that students and critics of the Court contemplate now, on the 30th anniversary of his appointment (and looking to the future), is the principle that unifies his thought.

 

Obvious themes clearly appear in Justice Thomas’s three decades of Supreme Court opinions. Impressive and vast, his body of work touches on almost every aspect of constitutional law, including free speech and religion, criminal law and procedure, equality, and the separation of powers and federalism. He stands as the justice most committed to the idea that the Constitution means what the Framers understood it to mean. He adopted this approach early in his career. In U.S. Term Limits v. Thornton (1995), he dissented from the Court’s 5–4 decision to strike down term limits, imposed by states, on federal congressmen. While the Constitution sets out minimum qualifications for offices, such as age and citizenship, it does not specifically prohibit states from adding more. Under the original understanding of the federal compact, Justice Thomas found, states continue to govern their political systems — including the choice of men and women to send to Congress.

 

While Justice Thomas appreciates more than many the indispensable role of the Union in protecting the rights of citizens, he also illuminated the subject by returning to the Founders’ original design for a decentralized government in which Washington, D.C., intervened only in narrow, discrete ways. He made this even clearer in another 1995 opinion, a concurrence in United States v. Lopez. Lopez raised the question whether Congress could make handgun possession in a school zone illegal. As the Constitution refuses the federal government any general police power to regulate all conduct and individuals within its territory (like that wielded by the states within theirs), Congress has exploited its authority to “regulate Commerce . . . among the several States” to pass nationwide laws. Justice Thomas joined the majority in striking down the school-zone law as beyond the limited grant of federal power, even though the commerce clause has been used to justify the 1964 Civil Rights Act and today’s explosion of federal health and safety rules. He refused to read the commerce clause as touching people, goods, and services that crossed state boundaries as well as any intrastate conduct that — in aggregate — substantially affects national markets, as modern doctrine would have it. To do so not only stretches “commerce” beyond its original understanding but would render irrelevant the other limited powers in the Constitution (for example, those over bankruptcy, patents, and ports). This “substantial effects” dimension of the interstate commerce power, Justice Thomas dismissively observed, “is but an innovation of the 20th Century.”

 

Observers can discern another theme in Justice Thomas’s opinions: his stalwart defense of individual, not group, equality before the law. In Adarand v. Peña (1995), he joined a 5–4 majority that struck down racial quotas in government contracts. In a separate opinion, Justice Thomas found the nation’s commitment to racial equality not only in the Constitution but in the Declaration of Independence as well. Affirmative action is “racial paternalism,” he wrote, whose “unintended consequences can be as poisonous and pernicious as any other form of discrimination.” His unique perspective makes him deeply suspicious of such social engineering, which can harm the very minorities it claims to help. Instead, he demands only that the government stop intervening in black lives — it has done them enough harm. Quoting Frederick Douglass, Thomas wrote in Grutter v. Bollinger (a case on university admissions, the one remaining area where the Court allows racial quotas): “If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!”

 

These central features of Justice Thomas’s thought — hewing to the original understanding of our founding documents; insisting on decentralized government; protecting individual, not group, rights — have their roots in a philosophy uniquely upheld by Justice Thomas: that of natural rights. When he arrived on the Court, the idea that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” had already become passé in polite academic and legal company. Under the pressure of FDR’s Court-packing plan and the political support for the New Deal, the Court had replaced natural rights with its enforcement of the positive law issued by legislatures and agencies. Legal scholars mocked natural rights as “nonsense on stilts.” Even the leaders of the Reagan administration’s legal revolution, Judge Robert Bork and Justice Antonin Scalia, rejected the idea that Americans should find their rights outside the written Constitution. In this, they joined liberal judges and theorists who criticize as “activism” the idea that courts should block laws that violate unwritten natural rights.

 

Skeptical as ever of elites and experts, Justice Thomas has made natural rights the foundation on which he has built his work on the Court. In Adarand, he became the first justice of the Supreme Court to rely on the Declaration of Independence as a source of law rather than as a political document that came before the Constitution. He could not agree more with Lincoln’s argument in 1859 that the Declaration was more than a legal act separating the colonies from the motherland:

 

All honor to Jefferson — to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.

 

Instead, the Declaration codified the natural right of equality and the right to life, liberty, and the pursuit of happiness. It became the principle upon which a Frederick Douglass and a Martin Luther King Jr. could draw to demand the nation live up to the better angels of our nature.

 

Thomas would reject the view of his conservative judicial brethren, such as Bork and Scalia, that the Constitution remains essentially values-free and sets out only a process for self-government, while the Declaration sets out the moral values to be implemented by the Constitution. Lincoln, who described the Declaration’s announcement of liberty as an “apple of gold,” argued that “the Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple — not the apple for the picture.” It should not be surprising that Justice Thomas too would find greater inspiration in the Declaration than in the Supreme Court or the Constitution. He was born under a system of racial segregation blessed by the Supreme Court in Plessy v. Ferguson, which the Court did not overrule until Brown v. Board of Education 58 years later, when he was six years old.

 

While the principle of natural rights may sit silently beneath the crashing waves of the latest disputes at the Supreme Court, whether over abortion, the right to bear arms, or affirmative action, do not doubt that it is there. Justice Thomas made this clear in a remarkable speech delivered last month at the University of Notre Dame, in a program on natural rights and constitutional law headed by Professor Vincent Phillip Muñoz, a scholar associated with the Claremont Institute, which has done much to resuscitate Lincoln’s importance in American political thought. In describing his youth, Justice Thomas said that “the motivating truth of my childhood” was that “because I’m a child of God, there is no force on this earth that can make me less than a man of equal dignity and equal worth” despite the evils of Jim Crow. As a young man, angered by the assassination of Dr. King in 1968, he fell into radical ideologies that bred only “emptiness, cynicism, and despair.” But he rejected it all — he even gives the exact date of April 16, 1970 — when he returned from a riot and rediscovered the foundational principle of his youth.

 

As Justice Thomas rose through government — serving as assistant attorney general of Missouri, then as an aide to Senator Jack Danforth, and then in the Reagan administration, at the Department of Education and as chair of the Equal Employment Opportunity Commission — he began to delve more deeply into studies of the Declaration and the Founding. It is worth quoting at length from his Notre Dame speech:

 

At that time, having run agencies and seeing how the federal government actually worked, I became deeply interested in the Declaration of Independence. I had hoped it would bring some clarity to the cacophonous world in which I found myself studying the Founding. Studying the Founding, however, felt more like a return to familiar ground, the ground of my upbringing. The Declaration captured what I had been taught to venerate as a child but had cynically rejected as a young man. “All men are created equal, endowed by their Creator with certain unalienable rights.” And so declaring, the Declaration of Independence did not propose to have discovered anything new. Its truths were self-evident. They were beyond dispute. They were a priori in the society of my youth, and by the school, home and in the culture they were given. And as I rediscovered the God-given principles of the Declaration, and our Founding, I eventually returned to the church, which had been teaching the same truths for millennia; that the Declaration set forth self-evident truths was no accident.

 

At the end of the speech, Justice Thomas calls on all listeners to join him in rejecting claims that America has failed because it has not lived up to the Declaration. Instead, the Declaration is what has allowed the American experiment to succeed by setting out the moral goals for our nation. The Declaration, he says, has “weathered every storm for 245 years. It birthed the great nation, it abolished the sin of slavery, and it endeavored to address its effects.” The Declaration “establishes a moral ideal that we as citizens are duty bound to uphold and sustain. We may fall short. But our imperfection does not relieve us of our obligation.”

 

In that first interview 30 years ago, I was witnessing the beginnings of Justice Thomas’s effort to bring together his judicial duty, the lessons of his youth and his return to natural rights, and his place in the American story. America to Justice Thomas remains an exceptional nation. It is still, as Abraham Lincoln said at Gettysburg, “a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” Only such a nation, whatever its faults (and they have been many), deserves the devotion of even those men and women, Justice Thomas among them, whose ancestors suffered at its hands. Only in America could a poor black child, born under the scourge of racial segregation, rise to prominence as a justice on the highest court in the land. That Justice Thomas has been able to dedicate himself to the unfinished work of the Declaration of Independence, and to set an example for others to take up that work, is the very fulfillment of that document’s promise. His coming years on the Court will reveal how his belief in natural rights may fare against the centralized government, identity politics, and critical theories of our own day.