Clarence Thomas understands "the politics of personal destruction." After President Bush nominated him to succeed Thur-good Marshall on the Supreme Court, liberals threw a fit. With no evidence of felonious conduct from a special prosecutor, Thomas's opponents had to make the most of a single he-said/she-said dispute about an alleged episode of naughty language in the workplace a decade earlier. But joined with an incredible torrent of personal vilification, it almost succeeded. Back in the "kinder, gentler" world of 1991, Thomas ended up with nearly as many senators voting to exclude him from the Supreme Court as recently voted to remove President Clinton from the White House.
The virtue of Scott Gerber's new study, First Principles, is that it puts in better perspective Thomas's whole career. Gerber has a Ph.D. in political science as well as a law degree, and on the whole, the plodding research methods of the former graduate student prevail in his book over the argumentative instincts of the lawyer. The bulk of First Principles is devoted to a case-by-case survey of Thomas's opinions in his first five years on the Supreme Court, allowing contemporary critics and supporters of these opinions to have their say, beside Gerber's own (usually quite measured) judgments.
But Gerber has sense enough to realize that an analysis of Thomas's performance on the Court -- especially one that tries as well to review the commentary of journalists and scholars on that performance -- cannot altogether abstract from the political context. "Polarized" and "controversial" do not capture the atmosphere in which Thomas has had to find his footing; "hate-filled" would be more apt.
Certainly, today's dispensation -- of "putting it behind us" and "moving on" after a Senate vote -- was not afforded him. Years after his confirmation, critics were still trying to prove that Anita Hill had told the truth in her charges against Thomas and that the man was therefore a harasser as well as a liar.
Subsequent "legal" commentary, purporting to analyze Thomas's legal opinions, continues to paint him as exceptionally despicable. Leon Higginbotham, a former federal appellate judge, denounced Thomas as the "moral equivalent" of the nineteenth-century justices who gave constitutional sanction to slavery and segregation. Time magazine published an essay castigating Thomas as the purveyor of "Uncle Tom Justice." And these were the more respectable accounts. Emerge, an African-American magazine aimed at a popular audience, caricatured Thomas on its cover as a grinning lawn jockey under the headline, "Uncle Thomas: Lawn Jockey of the Far Right."
One law professor wrote an attack on Thomas so nasty and ad hominem that it was rejected by the leftist scholar Randall Kennedy for his journal, Reconstruction. Among other things, the article speculated that Thomas had voted to overturn the conviction of a man charged with illegally purchasing child pornography because Thomas himself was an avid consumer of pornography. We know about this (as Gerber documents) because what was too nasty for a left-leaning opinion journal devoted to "robust, wide-open debate" was deemed quite suitable for an article in the New York Times (masquerading as a "news story" about Kennedy's refusal to publish the attack). But then the Times, in its own editorial voice, had already denounced Thomas as "the youngest, cruelest justice" for disregarding the newspaper's editorial line on what constitutes cruel and unusual punishment.
It would take a more acute and imaginative analyst than Scott Gerber to explain why all these champions of tolerance and equality were driven to such frenzied attacks on Clarence Thomas. Gerber is content simply to survey the commentary and inform the reader that the reactions of critics he identifies as "liberals" parallel those critics' political objections to Thomas's rulings.
The most charitable interpretation is that, having failed to keep Thomas off the Court, liberals have sought to isolate and delegitimize him through a calculated campaign of personal abuse. They did this (one might charitably suppose) because Justice Thomas, as a highly visible and articulate black man with conservative views, threatened to discredit the premise of liberal racialist rhetoric -- which declares that anyone who "knows what it is like to be black" must support liberal policies.
Less charitably, one might conclude that many of Thomas's critics actually believe that skin color determines political belief and therefore really do believe that Thomas's conservative rulings are a conscious fraud or an angry reaction to his confirmation experience.
This latter interpretation has certainly been on offer from respectable legal journalists. Jeffrey Toobin's profile in the New Yorker portrayed Thomas (in Gerber's summary) as "a vindictive and possibly disturbed individual" whose Court rulings were "driven by deep anger, rather than by reason." Jeffrey Rosen chimed in at the New Republic with the claim that "Thomas's own voice -- radical, angry, interestingly perverse" -- was deployed in one opinion after another "for the sole purpose of sticking it to his familiar opponents -- the liberals, the interest groups, Congress."
Gerber shows that such convenient analyses proceed in blithe disregard of basic facts. Nothing in Thomas's background should have left anyone surprised about his conservative tendencies. Thomas specialized in tax law at Yale Law School in the early 1970s, went to work for a Republican state attorney general (in conservative Missouri), then practiced business law at one of the nation's largest chemical companies. President Reagan put Thomas in charge of the Equal Employment Opportunity Commission because he was already known to be critical of affirmative action and of the excesses of government regulation. Gerber brings out another point (from Thomas's own speeches): Thomas's grandfather, who reared him in a small town in rural Georgia, was an uneducated black man who made his way amidst the racism of the Old South with his own small business (delivering wood, then coal, then oil) and brought up Thomas to respect self-reliance and distrust the "help" offered by meddling government officials.
But whatever may explain the impulses of his haters, Thomas's tenure on the Supreme Court remains remarkable. Not even his initial supporters were quite prepared for the boldness and originality of his jurisprudence. Gerber documents how mistaken was the early charge that Thomas was simply a loyal puppy, following at the heels of his conservative mentors, Chief Justice William Rehnquist and Justice Antonin Scalia. As a matter of fact, Thomas has proved more conservative than either Rehnquist or Scalia, as Gerber demonstrates by tabulating votes on major issues.
Conservative votes, however, are the least of it. Throughout his opinions, in a string of major decisions, Thomas has developed arguments not heard at the Supreme Court in decades -- and some that have never been articulated before in such sharp and confident lines. Thomas has very much his own approach. Even when he reaches the same conclusion as Scalia and Rehnquist, he often has a distinctive way of getting there. Scalia and Rehnquist try to ground their arguments in historical documentation of "original intent" or in appeals to "unbroken traditions." Thomas keeps reaching for the underlying principle -- in effect, reaching for what the Founders would have said, if they had to use their principles to address today's issues.
Thomas does seem, in this sense, to share some of the impatience voiced by liberals with the positivist orientation of Rehnquist, Scalia, and Judge Robert Bork. These conservative legal thinkers are always eager to retreat to the line that the law is the law because it is the law -- and those who don't like it should either amend the Constitution or learn to live with it. This has the appeal of cutting off some interpretive manipulation. But in resting the authority of the Constitution on the fact that the state ratifying conventions made it binding law, this approach invites the unhappy conclusion that constitutional law can be arbitrary or unjust and still be every bit the law. Thomas, by contrast, often treats the Constitution as the outcome of the Framers' effort to articulate standards whose authority derives, at least in part, from a connection to justice -- in other words, to some version of natural law.
Gerber does not venture deeply into such arguments, though some sense of the difficulties involved emerges from his analysis of Thomas's opinions. In civil-rights cases, Gerber classifies Thomas's stance as "liberal originalism" because it harks back to the liberal principles of the Framers without getting distracted by historical evidence of what the drafters of the post-Civil War amendments to the Constitution actually said or did on racial issues. So in Adarand v. Pena, a case that struck down a race-based "set-aside" program for government contractors, Thomas wrote separately to clarify his position:
There can be no doubt that the paternalism that appears to lie at the heart of this [affirmative action] program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence ("We hold these truths to be self-evident, that all men are created equal").
The moral confidence displayed in that crisp citation -- "See Declaration" -- says more than any lengthy disquisition ever could.
Gerber complains that, outside civil rights, Thomas often falls back on a "conservative originalism" that identifies the original meaning of the Constitution with particular policies of the eighteenth century rather than the broad principles behind them. So Gerber criticizes Thomas's opinion in Rosenberger v. University of Virginia for disregarding the broader logic of what it means to have a government separated from religion and justifying the funding of a student religious publication by a narrow parsing of historical evidence from particular statements of Madison and Jefferson. Similarly, Gerber commends Thomas's bold concurring opinion in United States v. Lopez that struck down the federal Gun-Free School Zone Act by arguing for a narrow construction of federal power to regulate commerce. But Gerber criticizes Thomas's dissent in Term Limits v. Thornton (which would have allowed states to impose limits on reelection to Congress) for adumbrating an untenable, states' rights view of the federal system.
Thomas's arguments are much more powerful in each of these cases than Gerber acknowledges. But Gerber's criticism does point up one of the central difficulties in a jurisprudence of "first principles": the problem of identifying the relevant principles at the proper level of abstraction.
Thomas cannot be accused of trying to please some particular political constituency when he stakes out deeper or more ambitious doctrines than those embraced by Rehnquist or Scalia. Rather he has taken the time to immerse himself in obscure sources and on occasion produced extraordinarily intricate and detailed opinions. Only patient specialists working in technical law reviews could be expected to appreciate them, and, as Gerber concedes, there are so few conservatives in America's law schools that these opinions often receive no notice at all. But the fifty-year-old Thomas keeps digging into old books to enlarge his views -- in a way that is rare for anyone of his age, let alone of his station. And at the same time, he has somehow acquired the inner confidence to hold to his own conclusions, undismayed by criticism or neglect, content to address himself to a better future.
It may be a generation before we can judge whether these views have coalesced into a constitutional vision of any influence. Gerber's study is surely not the definitive treatment of Thomas's jurisprudence, which still has years to develop. But Gerber does offer enough detail to remind an attentive reader of what a phenomenon Clarence Thomas is. The sheer intellectual power of Thomas's Supreme Court opinions would put to shame all those who vilified him -- if they were capable of shame.
Jeremy Rabkin teaches constitutional law at Cornell University.