During Black History Month, the Washington Post published a piece stating that Justice Thomas’s rulings “reflect the thinking of White conservatives.” Amidst backlash, they later “corrected” the piece to note that Justice Thomas’s rulings reflect the thinking of “conservatives broadly.” While many saw racial overtones in the first statement, its correction is still demeaning. Justice Thomas, a 30-year veteran on the Court, is the Court’s most prolific and independent voice. His rulings are not “reflective” of anyone’s thinking.
Justice Thomas is one of the most consequential justices of our lifetimes. He has staked out bold, originalist positions on just about every area of the law. He believes that the role of a judge is limited to interpreting the Constitution and federal law. In a March 2008 Wall Street Journal profile, titled “Mr. Constitution,” he explained his view of judging simply: “I don’t feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it.”
And interpreting the Constitution is what Justice Thomas is most known for.
His very first week on the Court, for example, he was willing to be the lone dissenter and his reasoning later went on to persuade three of his colleagues. In fact, in saying that Justice Thomas’s rulings reflect the views of “conservatives broadly,” the Post got it exactly backwards. Justice Thomas is the justice most likely to write a solo opinion, precisely because his well-considered views are different from his colleagues, even the “conservative” ones.
In fact, while Justice Thomas and the late-Justice Scalia were widely regarded as the Supreme Court’s two staunch originalists (and there’s no question that Justice Scalia deserves mountains of credit for shifting the jurisprudential debate back to a focus on text and original meaning), Justice Thomas is no one’s clone.
Gonzales v. Raich is one example. In that case, the Supreme Court upheld federal jurisdiction over locally-grown marijuana. While Justice Scalia concurred in the Court’s opinion, Justice Thomas dissented and pointed out how far the Supreme Court’s jurisprudence had strayed from the original meaning of the Commerce Clause. He argued that the Court’s Commerce Clause cases gave the federal government nearly unending power over local decisions.
In the first Obamacare decision, Justice Thomas’s concerns regarding the Commerce Clause came home to roost. In that case, the Obama Administration argued that the clause gives government the power to force Americans to buy a product — in this case, health insurance. Thankfully, five justices agreed with Justice Thomas and found this assertion of government power a bridge too far.
Another area in which Justice Thomas has been at the forefront of judicial thought is administrative law. Justice Thomas has consistently argued for a systematic reexamination of administrative law via originalist principles. In so doing, he has sometimes disagreed with his erstwhile ally, Justice Scalia. Justice Thomas has long urged the Court to reconsider so-called Chevron deference. In a case bearing that name, the Supreme Court concluded that the federal courts must defer to the interpretation given a federal statute by an administrative agency. According to Justice Scalia, the doctrine constrains judges who are not constitutionally empowered to make law.
The problem, according to Justice Thomas, is that Chevron deference gives enormous power to unelected bureaucrats, who are not even mentioned in the Constitution, let alone given the power to make law. As Justice Thomas sees it, Chevron deference is inconsistent with both Article I, which gives the power to Congress, not agencies, to make law, and with Article III, which requires the federal courts to interpret the law. The Court has gradually been limiting the power of administrative agencies and moving towards Justice Thomas’s views constraining agency authority. And indeed, legend has it that Justice Scalia was even reconsidering his views on Chevron.
Finally, Justice Thomas has his own view of religious liberty. In Employment Division v. Smith, a case involving the use of peyote in religious ceremonies, Justice Scalia concluded that, so long as a law applies to everyone, the Free Exercise Clause of the First Amendment is not implicated. Justice Thomas has since articulated the contrary view, arguing that the Free Exercise Clause doesn’t mean much if it allows the government to substantially burden religion. Just this past term, a majority of the Supreme Court justices expressed their view that Smith was wrongly decided.
In short, Justice Thomas is an independent thinker who has made significant contributions to American constitutional jurisprudence. The only thinking his opinions “reflect” is his own.