01 Jun 2005 Learning Clarence Thomas’s First Principles, by Darryn “Dutch” Martin

From his gut-wrenching confirmation hearings in 1991 through his past 13 years on the bench, Clarence Thomas is likely the most misunderstood justice ever to sit on the United States Supreme Court.

As a black conservative jurist, he continues to be vilified by the mainstream media, liberal legal scholars and others for standing by his beliefs and refusing to have ideas “assigned to me like an intellectual slave because I’m black.”  It is doubtful whether Justice Thomas’s critics have objectively examined his political philosophy and jurisprudence and also safe to assume that most Americans simply don’t know the real Clarence Thomas.

This omission is unfortunate considering Justice Thomas stands a good chance of being the next Chief Justice, or at least a close ally of whoever holds the position.

Scott Douglas Gerber attempts to rectify this in his book First Principles: The Jurisprudence of Clarence Thomas.  It provides a scholarly, intellectually rigorous and unbiased look at Justice Thomas’s political and legal philosophy by examining Thomas’s judicial opinions and voting patterns during his first five years on the Supreme Court, his scholarly writings and public speeches.

Clarence Thomas’s political philosophy is deeply rooted in the concept of “natural law,” the belief in the primacy of the individual’s inherent equality and the importance of protecting individual – as opposed to group – rights.  This has caused him to criticize the High Court’s civil rights decisions, including Brown v. Board of Education (1954).  In fact, Justice Thomas is the first Supreme Court justice to directly criticize Brown.  

Although Justice Thomas agrees that “separate but equal” is unconstitutional was correct, he feels the Brown decision was based on “dubious social science” which claimed that segregation made black children feel inferior.  Instead, Thomas would prefer a decision based on of “reason and moral and political principles, as established in the Constitution and the Declaration of Independence.”  Specifically, he feels the Court should have looked to the Constitution’s Equal Protection Clause as the basis for its decision; namely, that “the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.”  Justice Thomas uses that to conclude that state-sponsored segregation denies equal protection under the law.

Justice Thomas’s commitment to individual rights also fuels his staunch opposition to affirmative action.  In a 1987 Yale Law and Policy Review article, he wrote:

Class preferences are an affront to the rights and dignity of individuals – both those individuals who are directly disadvantaged by them, and those who are their supposed beneficiaries.  I think that preferential hiring on the basis of race or gender will increase racial divisiveness, disempower women and minorities by fostering a notion that they are permanently disabled and in need of handouts, and delay the day when skin color and gender are truly the least important things about a person.

For legal wonks, Gerber meticulously analyzes Justice Thomas’s legal opinions and debates in three key areas: civil rights, civil liberties and federalism.  Gerber explains why he agrees and disagrees with certain decisions.  In Hudson v. McMillian (1992), for example, Gerber says Justice Thomas was correct in his dissenting opinion that a prisoner must establish that he suffered a significant injury in order to seek redress under the Eighth Amendment’s prohibition against cruel and unusual punishment.  He disagreed, however, with Justice Thomas’s dissent in U.S. Term Limits, Inc. v. Thornton (1995), a case that struck down state-imposed congressional term limits.

Gerber also shows how those in media, legal and academic circles reacted to the Rehnquist Court rulings in general and Justice Thomas’s opinions in particular, and how the reactions were inextricably linked to the political agenda of the commentator.

Overall, Gerber does an excellent job showing Clarence Thomas as a thoughtful jurist with a deep respect for the textual and historical integrity of the Constitution, which should be interpreted based upon the original intent of our Founding Fathers.

Judicial interpretation has always been the focus of the judicial nomination process.  With Justice Thomas’s star ascending, it is wise to understand how he thinks, why he thinks it and what others are thinking about him.