The Case for Clarence Thomas, Chief Justice of the Supreme Court, by Jeffrey Hicks

Chief Justice William Rehnquist’s current battle with cancer is sending shock waves throughout the legal community. With the Chief Justice forgoing active participation in the Court’s activities, it is speculated that the 80-year-old may be ready to retire.

Republican gains in November now create the real possibility of something few would have seriously considered previously: That Justice Clarence Thomas could become the next Chief Justice of the U.S. Supreme Court.

Both President Bush’s reelection and the four-seat increase in the Senate’s Republican majority make Justice Thomas’ promotion a realistic prospect. Court-watchers no longer dismiss him as a political “third rail.” In fact, it is acknowledged that promoting him could prove a sagacious move for several key reasons.

Over the years, Justice Thomas’ jurisprudence has evolved into what is arguably the Court’s most conservative. He is considered a champion of two conservative judicial doctrines – originalism and strict constructionism.

Originalist doctrine seeks to discern the original intent of the Constitution’s framers. It is antithetical to the judicial activism many conservatives liken to legislating from the bench to achieve political ends. The most polarizing example of judicial activism revolves around Roe v. Wade, which bore the right to an abortion from the right to privacy. An originalist would argue that the framers never contemplated the right to an abortion, thus only Congress or the states can manufacture such a right. The originalist is not concerned that the right to abortion exists, but that it should be created though the appropriate means rather than a politically-charged court decision.

Strict constructionism, the other bedrock of Justice Thomas’ judicial philosophy, comes into play where the Constitution is silent on an issue or original intent is unclear. A strict constructionist would analyze the textual construction of federal law so as to rule in keeping with its legislated intent.

In principle, the concept is easy – but it can be grueling in practice. Sometimes even strict constructionists differ in their interpretations of the textual meaning of a given law. What is important, however, is their common goal to rule not on their personal inclinations but on the content of the actual text of law.

Justice Thomas is generally joined by Justice Antonin Scalia on both legal opinions and their adherence to conservative judicial principles. Naturally, conservatives also salivate at the prospect of a Chief Justice Scalia. With this in mind, why would Scalia not be preferable to Thomas given Scalia’s greater experience, academic background, and less controversial presence on the Court?

One reason is Justice Scalia’s age. At 56, Justice Thomas is the Court’s youngest member. It’s a significant difference to Scalia’s 68 years considering it is a lifetime appointment. While youth constitutes no guarantee he would outserve Scalia, Thomas’ selection offers the likelihood of a longer term.

Another reason is Justice Scalia’s widely-publicized comments regarding how he and Justice Thomas differ regarding stare decisis, or adherence to legal precedent. While Scalia too rules by looking towards original sources like Thomas, he also gives considerable weight to previous Supreme Court decisions and applies these precedents – even if they are grounded in years of faulty constitutional interpretations.

Justice Scalia’s adherence to stare decisis would be both mandatory and appropriate in lower courts, however, he fails to fully recognize the leadership role the Supreme Court must play in refining federal law. For example, the discriminatory precedent of Plessy v. Ferguson was overturned when the Brown v. Board of Education decision ended segregation in public schools. Moreover, rigid adherence to stare decisis theoretically would have had Scalia voting to uphold the infamous Dred Scott decision that established slaves as property instead of persons with legal standing.

Justice Thomas’ bold approach to reasserting constitutional basis of the law enables him to vote to overturn precedents aberrant to original spirit of the Constitution. He thus recognizes the responsibility of the Supreme Court to exert leadership and not simply to ensure the continuity of poor previous decisions.

Justice Clarence Thomas is obviously the U.S. Supreme Court’s preeminent guardian of the Constitution – the centerpiece of our great nation. Accordingly, President Bush should enthusiastically nominate him to preside over the Court when the esteemed Chief Justice Rehnquist finally announces his retirement.

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