For political observers, the story of the Supreme Court’s recently concluded term was the clash of two great colliding forces. On one side stood the Court’s always-unified liberal bloc, fortified by the apostasies of Republican-appointed Justice Anthony Kennedy and sometimes Chief Justice John Roberts, most prominently in cases involving same-sex marriage and Obamacare. On the other side stood Justice Antonin Scalia, a lion in winter, caustic and witty in his dissents. But for close watchers of the Court, another theme ran through this term: the breadth and depth of Justice Clarence Thomas’s institutional critique of the Court itself for straying from the Constitution, failing to apply its own precedents evenhandedly, neglecting the separation of powers and federalism, and allowing itself to be manipulated by runaway executive agencies.
Like a medieval monk preserving Western culture through the Dark Ages, Thomas soldiered doggedly on, carrying the largest writing workload on the Court, pressing his point in cases small and large, sometimes at odds with his conservative colleagues, often alone. Perhaps history will never return to the path he is marking, but no one can say we weren’t warned.
Supreme Court justices are often little known or understood by the general public, and in Thomas’s case, his image is further obscured by his race, the controversies surrounding his 1991 confirmation, and his famous refusal to ask questions at oral argument. Thomas’s critics outside the legal profession tend to fall back on open attacks on his race (a “clown in blackface,” said Star Trek actor, Facebook meme-sharer, and gay-rights crusader George Takei recently) or unsubtly coded attacks (such as Harry Reid’s assertion that Thomas wasn’t smart or a good writer like Scalia, though Reid couldn’t name any of his opinions).
But behind the slings and arrows of politics and punditry, Justice Thomas has been this term’s workhorse, and not for the first time. According to SCOTUSBlog, he wrote more opinions than any other justice this term, 37 (Justice Samuel Alito was second with 30, Justice Elena Kagan last with 11); the most concurring opinions, 11 (Alito was second with 9, Roberts and Kagan last with 2 each); the most dissenting opinions, 19 (Scalia was second with 15, Justice Ruth Bader Ginsburg last with just 1); and the most total pages of opinions, 432. This is the second time in three years that Thomas has written the most opinions, and they are not filled with breezy rhetoric, but thick with citation to the roots of our constitutional system, from the Magna Carta to John Locke to Blackstone’s Commentaries.
Even from Scalia
But mere volume is not the measure of Thomas’s jurisprudence. For that, one must take a closer look at the many times he has stood against the prevailing winds, warning his colleagues that the Court should consider its own errors and limitations. The cases in which he has split from Scalia—his closest colleague philosophically—are telling.
In Johnson v. United States, the Court struck down part of the 1984 Armed Career Criminal Act, which greatly enhances prison sentences for felons in possession of a firearm who have three prior convictions for a “violent felony.” Scalia wrote the majority opinion. It was a sweet victory for Scalia, who in several prior dissents had argued that the ACCA was unconstitutionally vague in defining “violent felony.” Thomas—noting that he had always thought the ACCA unconstitutional for allowing a judge to impose a long sentence based on facts not found by a jury—nonetheless refused to join the opinion on the grounds that the “void for vagueness” doctrine should be reconsidered. He cited its (comparatively) recent origin, which he traced to 1914 (before that, courts simply refused to enforce criminal statutes in cases where their application was unclear). And he lamented that the Court has not applied the doctrine consistently:
This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. . . . Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels.
Thomas traced how the Court’s “vagueness” cases have struck down whatever kind of law was out of fashion with the Court’s majority in a given era, from economic regulation in the pre-New Deal years (but not after) to obscenity laws in the 1940s to abortion laws (but not laws regulating speech by abortion protesters) today.