Tireless Defender of the Constitution

On July 1, 1991, then-President George H. W. Bush nominated Clarence Thomas to replace Justice Thurgood Marshall on the U.S. Supreme Court — and 25 years later, America has never needed his tenacious defense of the Constitution more.

Thomas, the second African-American justice the Supreme Court has had, has succeeded in bringing a conservative consistency to the bench that has honored the Constitution and the Founding Fathers’ original intent. These qualities have been especially important in weathering the onslaught of activist judicial liberalism that has intensified within the court since the death of fellow conservative Justice Antonin Scalia on February 13.

“If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.”

“The principle that [Thomas] follows, I think, more closely than anything is fidelity to the constitutional text as it was understood by those who drafted and ratified it,” Prof. John C. Yoo of the University of California at Berkeley and a former clerk of Thomas’, said Monday during a podcast entitled, “25 Years of Justice Clarence Thomas.” “I think it’s fair to say that of the members of the current court, he is the justice most committed to following the original understanding of the Constitution.”

Thomas’ rock-ribbed commitment to honoring the Constitution’s original textual meaning has long made him a key intellectual figure on the bench. Scalia, the more outspoken of the two, frequently took on the role of chief evangelist for the original intent position, but Thomas’ critical handprint is there on countless cases.

“Justice Thomas was an intellectual leader on the court from his first term on the bench — long before the death of Justice Scalia,” said Wendy Long, a litigation attorney and the Republican nominee for the U.S. Senate in New York, in an email to LifeZette. “Even where he and Justice Scalia voted for the same outcome in a case, Justice Thomas always performed an independent analysis with sometimes entirely different reasoning.”

Long, a former clerk for Thomas, also said the myth that Thomas followed the lead of Scalia has been fully discredited.

“Jan Crawford uncovered in her book ‘Supreme Conflict’ the popular notion that Justice Thomas followed Justice Scalia, even in the early days on the court, was completely false,” Long said. “If anything, the intellectual influence ran in the other direction, from Justice Thomas to Justice Scalia and the whole court, like a force of gravity forcing an alignment of others’ thought and analysis.”

Carrie Severino, another former clerk for Thomas, agreed with Long’s sentiments and said Scalia’s energetic and outspoken presence on the Supreme Court often blinded the media to the more understated strength and character of Clarence Thomas.

“Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”

“I think it’s fundamentally racist to write off Justice Thomas and say he was just following Scalia,” Severino, now chief counsel at the Judicial Crisis Network, said. “Now that Scalia is gone, it will be more obvious that Justice Thomas has always been a strong intellectual presence.”

Gregory G. Katsas, a partner at law giant Jones Day and another former clerk for Thomas, said on the podcast that Thomas has always been and continues to be “someone who has the courage of his convictions, and has this incredible sense of duty to the country and to himself and to his oath to get cases right, even if that means bucking his colleagues and bucking conventional opinion.”

Sure enough, Thomas is renowned for his willingness to overturn legal precedents if he doesn’t believe they align with the Constitution.

“If the jurisprudential train has gone off the tracks — even if it has gone off the tracks a long time ago — Justice Thomas thought the sooner the train gets back onto the true tracks of the Constitution, the better,” Long added. “His goal, he says, is just to ‘get it right.'”

In a critical recent example, Thomas, in his Grutter v. Bollinger dissent, quoted Justice Harlan’s Plessy v. Ferguson dissent, saying, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Similarly, in Gratz v. Bollinger, Thomas believed that “a state’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.”

In Obergefell v. Hodges, Thomas dissented from the court’s decision to legalize gay marriage in all 50 states, saying, “The court’s decision today is at odds not only with the Constitution, but with the principles upon which our nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”

Thomas is well known for some of his biting dissents to the court’s majority opinion. One of his most recent dissents arose from the court’s Whole Woman’s Health v. Hellerstedt decision that was released Monday. The court, which ruled 5-3 to strike down a Texas state law that required abortion clinics to adhere to the same standards as other clinics, issued its first major abortion decision in nearly a decade.

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“As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat,” Thomas wrote in his blistering dissent. “The illegitimacy of using made-up tests to displace longstanding national traditions as the primary determinant of what the Constitution means has long been apparent … But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the court tinkers with levels of scrutiny to achieve its desired result.”

Even as another conservative appointee, Justice Anthony Kennedy, moved to the left of the bench alongside popular opinion in elite circles, Thomas has steadfastly maintained a principled concern for upholding the Constitution.

“[Thomas] is 100 percent consistent,” Severino said, adding that he has always believed that “it’s not just about having the right principles, but it’s also about having the courage to stand up for them when it’s tough.”

“His whole career has been a lesson in that. The left has come to hunt him down and tar his name … but doing the right thing doesn’t equate with popularity,” Severino said. “But he knows that they are not his final judges and that he has to do what is right.”