I’m gaining weight and running out of popcorn watching the left freak out about the nomination of Brett Kavanaugh to the Supreme Court to replace Justice Anthony Kennedy. But beyond just the theatrics of the left’s primal screams and desperation tactics it is delightful to see the left begin to reckon with something more fundamental going on, which in one sentence I’ll assert is the growing vindication of the constitutional originalism of Justice Clarence Thomas.
It should be noted, as a placeholder, that constitutional originalism comes in several forms which differ considerably, but I won’t go into these myriad distinctions because it would take a long time. Interested readers might check out some of the helpful work on this by Lawrence Solum of Georgetown Law School. Some conservative jurists—one thinks of Rehnquist and Scalia in particular—were highly inconsistent in their originalist jurisprudence, but Thomas has been consistent from Day One on the Court. If the principles and reasoning of Thomas’s opinions are to be compared with a particular jurist of our past, it would have to be John Marshall.
Liberals have always dismissed Thomas as simply Scalia’s wingman, though no one who actually read with any care their separate opinions, concurrences, and dissents would think so. But the great thing about being a liberal is that you can just go with a cliche and skip the careful thinking part.
But now that the whole scene is in flux with the arrival of Justice Gorsuch—who, like Justice Thomas, believes that the natural law tradition in legal history stretching back to Roman times still has today what social scientists call “normative” value—the left is taking stock of things, and realizing that they are in a heap of trouble.
Linda Greenhouse, the chief tablet keeper of liberal shibboleths at the New York Times (where “the Greenhouse effect” has a whole different meaning) had an article a few days ago entitled “Is Clarence Thomas the Supreme Court’s Future?” We should be so lucky! Anyway, it is not hard to decode Greenhouse’s liberal hothouse with passage like these:
There is something almost discordant about including Justice Thomas in a discussion of “the future” because his highly personal and eccentric jurisprudence would take the court and the Constitution hurtling backward into the past.
That’s no great revelation. He has long insisted that the only legitimate way to interpret a constitutional provision is to give it the “public meaning” it supposedly had at the time it was written.
This last sentence is arguably incorrect, depending on how you understand “public meaning,” but never mind for now. . .
While Justice Thomas’s unyielding view of originalism has been evident since he took his seat on the court 27 years ago, his output in the most recent term was little short of astonishing. In a term that produced only 59 signed opinions, I counted six important and long-enduring precedents that Justice Thomas would have wiped off the books as inconsistent with the original understanding. . .
Taken individually, the opinions I’ve discussed here may seem quite technical and rather unremarkable. Taken as a whole, as the work of a single justice during a single Supreme Court term, they paint an extraordinary picture of a judge at war not only with modernity but with the entire project of constitutional law. . .
Those of us on the progressive side of the street are unlikely to look back on Justice Kennedy’s final term with nostalgia. But soon enough, we may decide that it was the best we’re going to see for a long time.
That’s the finest endorsement I can think of! Meanwhile, Hothouse cites a similar article from Ian Millhiser, who writes about legal affairs for the Center for American Progress. He, too, thinks Thomas defines the center of gravity for conservative jurisprudence, calling Thomas “the most important legal thinker in America.” No one on the left would have entertained this thought about Thomas 25 years ago. And Millhiser offers a mea culpa of sorts:
If President George H.W. Bush had chosen someone other than Clarence Thomas to sit on the Supreme Court, the world might look vastly different today. . .
There is a commonly held view that Thomas is an intellectual lightweight. Radical and far-too-quiet on the bench. Idiosyncratic and lacking in influence. A fairly persistent take on Thomas’ career holds that he’s lived in the shadow of Justice Antonin Scalia, and his views were, at most, an exaggerated version of Scalia’s originalism.
This view of Thomas is wrong.
I’ve been saying this since Thomas’s first day at the Supreme Court, but we know liberals are slow learners. Better late than never I suppose.
Here’s the fun part:
Thomas waged a quiet war of ideas against twentieth century liberalism — and he won the hearts of a legion of conservative law students. Many of those former students are now old enough to be judges. As of this writing, fully 20 percent of the judges Donald Trump appointed to the federal appellate bench are former Thomas clerks.
Here you’d think liberals, who dominate American law schools, might be introspective about how they have been routed intellectually, and might rethink their general jurisprudence of convenience. But don’t hold your breath.
Chaser: It must be miserable to be Ian Millhiser these days. Perhaps you caught the article in Politico a few days back by Lisa Blatt entitled, “I’m a Liberal Feminist Lawyer, and Here’s Why Democrats Should Support Judge Kavanaugh.” Blatt’s lede and conclusion run as follows:
Sometimes a superstar is just a superstar. That is the case with Judge Brett Kavanaugh, who had long been considered the most qualified nominee for the Supreme Court if Republicans secured the White House. The Senate should confirm him. . .
Democrats should quit attacking Kavanaugh—full stop. It is unbecoming to block him simply because they want to, and they risk alienating intelligent people who see the obvious: He is the most qualified conservative for the job.
Blatt heads the Supreme Court practice for Arnold and Porter, but all of this is too much for Millhiser to take. So naturally he is attacking Blatt. Hence this tweet about Blatt’s article:
Then he wrote a whole piece asserting Blatt is corrupt and self-interested:
Sometimes a superstar is just a superstar. And sometimes a superstar is a powerful Republican with the power to decide whether my clients will win or lose billions of dollars. That is the case with Judge Brett Kavanaugh. The Senate should confirm him. . .
Democrats should quit attacking Kavanaugh—full stop. It is unbecoming to block him simply because they want to, and they risk alienating intelligent people. Like my clients.
Wow—what cleverness! Did Millhiser stay up late to come up with this?
Pass the popcorn. The hearings haven’t even been scheduled yet.