Yesterday marked the 20th anniversary of Justice Clarence Thomas joining the Supreme Court and the editorial pages of America’s newspapers marked the occasion in predictable fashion. Writing in The New York Times, Lincoln Caplan topped off a laundry list of Thomas’ alleged judicial sins by pointing out “the most extreme part of Justice Thomas’s record,” his lack of respect for Supreme Court precedent:
Even to conservatives like Justice Scalia — an originalist, claiming to interpret the Constitution as the framers understood it — stare decisis, or following legal precedents, is integral to Supreme Court law. In guiding the court, that principle favors gradual over sweeping change. It is indispensable in assuring court rulings that are not whims of politics.
That’s not the Thomas approach. In pushing the court to reconsider what he has called “wrong turns” in the law, he has argued that “the ultimate precedent is the Constitution.”
There’s certainly a case to be made for stare decisis, but let’s not pretend Thomas is the only one who disregards precedent when it conflicts with his interpretation of the Constitution. Respect for precedent, after all, would have had the Supreme Court follow its 1986 ruling in Bowers v. Hardwick and uphold Texas’ notorious ban on gay sex in 2003’s Lawrence v. Texas. Or does Caplan think Thomas’ dissenting vote in Lawrence was correct because he followed precedent in that instance?
Meanwhile at The Wall Street Journal, former Thomas clerk John Yoo (you may have heard of Yoo for other reasons) made an important point about Thomas that his detractors usually don’t bother to mention:
Strictly obeying the original meaning of the Constitution can lead Justice Thomas to liberal results. Based on his reading of the Commerce Clause, for example, he unsuccessfully urged his brethren to strike down most of the federal drug laws—which made him an unlikely hero in my hometown of Berkeley, Calif., if only for a day. He joined a majority to invalidate thousands of criminal sentences because judges, instead of juries, had found the vital facts—in violation of the Bill of Rights.
Justice Thomas opposed the court's pro-business decisions that capped punitive damages because he believes the issue is for the state courts to decide. He voted to suppress evidence produced by police using thermal-imaging technology to scan homes for marijuana growth as unreasonable searches in violation of the Fourth Amendment. Because the Framers wanted broad protections for political speech, Justice Thomas joined opinions protecting violent movies and offensive protesters at military funerals.