The Volokh Conspiracy
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Defending Clarence Thomas from My Good Friend Steve Lubet
The best and most incorruptible Supreme Court Justice in U.S. History
My good friend from the Northwestern Pritzker School of Law faculty Steve Lubet has very politely, but firmly taken issue with my recent post on this Blog about Justice Clarence Thomas. Steve does "not question [my] assessment of Thomas's exceptional intellect." But he does question my assertion that Justice Thomas is the best of the 116 justices to have sat on the Supreme Court. I want to begin by defending that claim before turning to the ethics issues that Steve is troubled by.
First, I am not alone in thinking that Clarence Thomas is the best of the 116 Justices to ever serve on the Supreme Court. I am one of the three co-founders and the 40 year Co-Chairman of the Federalist Society's Board of Directors. The Society has 70,000 members nationwide, chapters at every law school in the country, lawyers chapters in every major city in the country, and a substantial presence on the federal judiciary. After forty years of attending thousands of Federalist Society gatherings, I have a pretty good sense of what Federalist Society members think. They adored the late Justice Antonin Scalia, but after Clarence Thomas had been on the Supreme Court for about ten years -- a frequent parlor game got started when Federalists got together. They would ask themselves who was right in those cases in which Justices Scalia and Thomas disagreed. The nearly unanimous answer was that Justice Thomas was right.
While Justice Scalia travelled all over the world and the United States giving speeches praising originalism and extolling its virtues, Justice Thomas worked in his office writing very consistent and powerful originalist opinions that started driving the Supreme Court in his direction. Some people said sadly as a joke that Justice Thomas had the courage of Justice Scalia's opinions. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1988-1989) (arguing for faint hearted originalism that did not overturn major precedents). All too often, as in Gonzales v. Raich, 545 U.S. 1 (2005) a case about whether the federal government had power under the Commerce and Necessary and Proper Clauses, to prosecute a cancer patient for growing three medical marijuana plants in her kitchen, Justice Scalia was in the liberal majority for national power and Justice Thomas was in dissent along with Chief Justice Rehnquist and Justice Sandra Day O'Connor.
These episodes added up, and Justice Scalia served only twenty-nine years on the Supreme Court, while Justice Thomas is still going strong in his thirty-third year on the Supreme Court. I am not alone in thinking that Justice Thomas is the best of the 116 justices to have served on the Supreme Court today. Most Federalist Society members who I talk to think the same way. It is striking and a wonderful thing for the country that an overwhelmingly white group of conservative and libertarian lawyers would look up to a Black man as their personal hero. Many of the six Republican appointees on the current Supreme Court are beloved by the Federalist Society membership. The three Trump appointees fall in that category, but they have not been on the Court for long enough to form a reputation. Federalist Society members greatly admire Justice Alito, but they regret that he is not really an originalist and that he follows precedent over the text of the Constitution. Similar complaints are made about Chief Justice Roberts. Chief Justice Roberts is also seen as being too political and too concerned with public opinion about the Court. In my view, this is a form of corruption.
Well what about the justices who served from 1790 to 1986 when Justice Scalia joined the Supreme Court. William Rehnquist and Byron White are condemned by Federalist Society members as being just right-wing legal realists -- the right's copy of Justice William O. Douglas. The Berger Court is viewed as having been a wasteland of intellectual mediocrities including Chief Justice Burger and Justices Harry Blackmun, Louis Powell, Potter Stewart, and Sandra Day O'Connor. The left wing justices on that Court all embrace left wing legal realism from William Brennan to Thurgood Marshall to John Paul Stevens. The Warren Court clocks in at higher mental acuity, but the only Warren Court justice who is really admirable is Hugo L. Black and, on occasion, Earl Warren himself. Six of the nine members of the New Deal Court joined the opinion in Korematsu v. United States, so it is hard to be wildly enthusiastic about any of them.
The pre-New Deal Supreme Court draws some admiration, but other than Justice Willis Van Devanter, I cannot say I have any heroes on the Taft or Hughes Court except for Van Devanter and Hughes himself. The Supreme Court from Abraham Lincoln's Administration to the 1920's was filled with mediocrities who followed their policy judgments and not the law. The Supreme Court from 1790 to 1860 had thirty six justices of which only four -- two each appointed by John Adams and John Quincy Adams -- opposed slavery. The other thirty-two justices were appointed by slaveowner Presidents or northern dough-faces complicit in slavery. This reflects the advantage the three-fifths clause gave the South in the Electoral College. The South had a near monopoly on the presidency prior to 1861 and therefore on Supreme Court appointments. Hence such decisions as Prigg v. Pennsylvania, 41 U.S. 539 ( 1842) and Dred Scott v. Sanford, 60 U.S. 393 (1857).
The truth is that the vast majority, probably ninety percent of the justices who have served on the Supreme Court, have been disappointments. This is one reason why the current Court should follow the original public meaning of the text of the Constitution and not the morass of erroneous Supreme Court opinions interpreting it. So yes, I will stick my neck out and say that Clarence Thomas followed by Antonin Scalia are the best justices so far to have served on the Supreme Court. I have read hundreds of Justice Thomas's opinions, and they are all exquisitely crafted, methodologically consistent, and are written in his own distinctive authorial voice. He never caves in to popular opinion or worries about how the public will react to his rulings, but instead he follows the rule of law in case after case. Liberal law school professors ignore Justice Thomas's opinions and do not read them, so they miss the genius of his intellect. I do not always agree with Justice Thomas, but I always understand and respect why he came out the way he did in any given case.
Steve Lubet pokes fun at my argument that if Congress had adjusted the Supreme Court justice's salaries for inflation since 1969, they would now make $500,000 a year, and Thomas would need less help from his billionaire friends, but the point is simply true. Steve is right that Republican Congresses, as well as Democratic Congresses, are to blame for this this, but the facts are what they are. High salaries for government officials allow the poor to serve in government and not only the rich. There is a public interest in making it possible for someone like Thomas who grew up dirt poor, and then served in government for his whole life as a lawyer, to be able to live comfortably and be paid the salary of a law school Dean.
Precisely because Clarence Thomas has such a worked out originalist methodology for deciding cases, which he always follows he cannot be bribed and is not at all influenced by public opinion. That is why I say Clarence Thomas is incorruptible. He always as a judge does what is right. The fact that he has friends who are conservative billionaires irks leftist law professors who yearn for the days when swing justices like Potter Stewart, Lewis Powell, Sandra Day O'Connor, and Anthony M. Kennedy were all influenced by the Linda Greenhouse effect. They all compromised their principles to be in good standing with Ivy League law professors and the Georgetown cocktail party set. But, this is a form of corruption far more insidious than anything alleged about Clarence Thomas and his billionaire friends. Thomas was never bribed in his official actions by money, but Justices Powell, O'Connor; and Kennedy were, in effect, bribed by the Linda Greenhouse effect.
As to Justice Thomas's failure to disclose gifts, he asked what the policy was and was told by his colleagues not to worry about disclosing vacation travel or gifts to support his elderly mother or the boy he is raising who has been abandoned. Congress has no enumerated power to require the justices to disclose any gifts anyway. Such a law is not necessary and proper for carrying into execution the judicial power of the United States. Steven Gow Calabresi, Elise Kostial, Gary Lawson, What McCulloch v. Maryland got Wrong: The Original Meaning of "Necessary" is not "Useful," "Convenient," or "Rational", 75 Baylor Law Review 1 (2023).
Justice Thomas has lived a good life. He has exemplified the four classical Greek and Roman virtues of: 1) Courage; 2) Temperance; 3) Justice; and 4) Prudence. Justice Thomas is by far and away the bravest justice on the Supreme Court. He has been vilified for being the personal hero of the 70,000 member Federalist Society, and he has learned to live with it. Justice Thomas does not eat, drink, or travel to excess. He practices temperance. Justice Thomas is devoted to Justice. He has stuck a golden mean between selfishness and selflessness. And, finally, Justice Thomas exhibits prudence -- the ability to see ahead and to govern oneself and discipline oneself by the use of reason. Justice Thomas also lives out the three Christian Virtues of faith, hope, and love. He is the only justice who knows the names of every employee at the Supreme Court as well as what their struggles with children are. He is as beloved by the cafeteria workers, librarians, and police officers at the Supreme Court as he is by the 70,000 Federalist Society members. In a little more than four years, Clarence Thomas will replace William O. Douglas as the longest serving Supreme Court justice in American history. He has a record all Americans should be very proud of.
