My good good friend from the Northwestern Pritzker Faculty of Legislation college Steve Lubet has very politely, however firmly taken situation with my latest submit on this Weblog about Justice Clarence Thomas. Steve does “not question [my] assessment of Thomas’s exceptional intellect.” However he does query my assertion that Justice Thomas is one of the best of the 116 justices to have sat on the Supreme Courtroom. I need to start by defending that declare earlier than turning to the ethics points that Steve is troubled by.
First, I’m not alone in considering that Clarence Thomas is one of the best of the 116 Justices to ever serve on the Supreme Courtroom. I’m one of many three co-founders and the 40 12 months Co-Chairman of the Federalist Society’s Board of Administrators. The Society has 70,000 members nationwide, chapters at each legislation faculty within the nation, attorneys chapters in each main metropolis within the nation, and a considerable presence on the federal judiciary. After forty years of attending 1000’s of Federalist Society gatherings, I’ve a fairly good sense of what Federalist Society members assume. They adored the late Justice Antonin Scalia, however after Clarence Thomas had been on the Supreme Courtroom for about ten years—a frequent parlor recreation obtained began when Federalists obtained collectively. They might ask themselves who was proper in these instances by which Justices Scalia and Thomas disagreed. The almost unanimous reply was that Justice Thomas was proper.
Whereas Justice Scalia travelled all around the world and the USA giving speeches praising originalism and extolling its virtues, Justice Thomas labored in his workplace writing very constant and highly effective originalist opinions that began driving the Supreme Courtroom in his route. Some folks stated sadly as a joke that Justice Thomas had the braveness 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 didn’t overturn main precedents). All too typically, as in Gonzales v. Raich, 545 U.S. 1 (2005) a case about whether or not the federal authorities had energy below the Commerce and Vital and Correct Clauses, to prosecute a most cancers affected person for rising three medical marijuana vegetation in her kitchen, Justice Scalia was within the liberal majority for nationwide energy and Justice Thomas was in dissent together with Chief Justice Rehnquist and Justice Sandra Day O’Connor.
These episodes added up, and Justice Scalia served solely twenty-nine years on the Supreme Courtroom, whereas Justice Thomas continues to be going robust in his thirty-third 12 months on the Supreme Courtroom. I’m not alone in considering that Justice Thomas is one of the best of the 116 justices to have served on the Supreme Courtroom right this moment. Most Federalist Society members who I discuss to assume the identical means. It’s putting and an exquisite factor for the nation that an overwhelmingly white group of conservative and libertarian attorneys would look as much as a Black man as their private hero. Most of the six Republican appointees on the present Supreme Courtroom are beloved by the Federalist Society membership. The three Trump appointees fall in that class, however they haven’t been on the Courtroom for lengthy sufficient to type a popularity. Federalist Society members tremendously admire Justice Alito, however they remorse that he’s not likely an originalist, that he follows precedent over the textual content of the Structure, and has by no means dominated for a felony defendant. Related complaints are made about Chief Justice Roberts. Chief Justice Roberts can be seen as being too political and too involved with public opinion in regards to the Courtroom. For my part, this can be a type of corruption.
Effectively what in regards to the justices who served from 1790 to 1986 when Justice Scalia joined the Supreme Courtroom. William Rehnquist and Byron White are condemned by Federalist Society members as being simply right-wing authorized realists—the fitting’s copy of Justice William O. Douglas. The Berger Courtroom is seen as having been a wasteland of mental mediocrities together with Chief Justice Burger and Justices Harry Blackmun, Louis Powell, Potter Stewart, and Sandra Day O’Connor. The left wing justices on that Courtroom all embrace left wing authorized realism from William Brennan to Thurgood Marshall to John Paul Stevens. The Warren Courtroom clocks in at greater psychological acuity, however the one Warren Courtroom justice who is actually admirable is Hugo L. Black and, once in a while, Earl Warren himself. Six of the 9 members of the New Deal Courtroom joined the opinion in Korematsu v. United States, so it’s laborious to be wildly captivated with any of them.
The pre-New Deal Supreme Courtroom attracts some admiration, however apart from Justice Willis Van Devanter, I can not say I’ve any heroes on the Taft or Hughes Courtroom aside from Van Devanter and Hughes himself. The Supreme Courtroom from Abraham Lincoln’s Administration to the 1920’s was stuffed with mediocrities who adopted their coverage judgments and never the legislation. The Supreme Courtroom from 1790 to 1860 had thirty six justices of which solely 4—two every appointed by John Adams and John Quincy Adams—opposed slavery. The opposite thirty-two justices had been appointed by slaveowner Presidents or northern dough-faces complicit in slavery. This displays the benefit the three-fifths clause gave the South within the Electoral Faculty. The South had a close to monopoly on the presidency previous to 1861 and due to this fact on Supreme Courtroom appointments. Therefore such choices as Prigg v. Pennsylvania, 41 U.S. 539 ( 1842) and Dred Scott v. Sanford, 60 U.S. 393 (1857).
The reality is that the overwhelming majority, most likely ninety p.c of the justices who’ve served on the Supreme Courtroom, have been disappointments. That is one motive why the present Courtroom ought to comply with the unique public which means of the textual content of the Structure and never the morass of misguided Supreme Courtroom opinions decoding it. So sure, I’ll stick my neck out and say that Clarence Thomas adopted by Antonin Scalia are one of the best justices up to now to have served on the Supreme Courtroom. I’ve learn lots of of Justice Thomas’s opinions, and they’re all exquisitely crafted, methodologically constant, and are written in his personal distinctive authorial voice. He by no means caves in to standard opinion or worries about how the general public will react to his rulings, however as a substitute he follows the rule of legislation in case after case. Liberal legislation faculty professors ignore Justice Thomas’s opinions and don’t learn them, in order that they miss the genius of his mind. I don’t at all times agree with Justice Thomas, however I at all times perceive and respect why he got here out the best way he did in any given case.
Steve Lubet pokes enjoyable at my argument that if Congress had adjusted the Supreme Courtroom justice’s salaries for inflation since 1969, they might now make $500,000 a 12 months, and Thomas would wish much less assist from his billionaire pals, however the level is just true. Steve is true that Republican Congresses, in addition to Democratic Congresses, are guilty for this this, however the info are what they’re. Excessive salaries for presidency officers enable the poor to serve in authorities and never solely the wealthy. There’s a public curiosity in making it doable for somebody like Thomas who grew up grime poor, after which served in authorities for his entire life as a lawyer, to have the ability to dwell comfortably and be paid the wage of a legislation faculty Dean.
Exactly as a result of Clarence Thomas has such a labored out originalist methodology for deciding instances, which he at all times follows he can’t be bribed and isn’t in any respect influenced by public opinion. That’s the reason I say Clarence Thomas is incorruptible. He at all times as a choose does what is true. The truth that he has pals who’re conservative billionaires irks leftist legislation professors who yearn for the times when swing justices like Potter Stewart, Lewis Powell, Sandra Day O’Connor, and Anthony M. Kennedy had been all influenced by the Linda Greenhouse impact. All of them compromised their ideas to be in good standing with Ivy League legislation professors and the Georgetown cocktail social gathering set. However, this can be a type of corruption much more insidious than something alleged about Clarence Thomas and his billionaire pals. Thomas was by no means bribed in his official actions by cash, however Justices Powell, O’Connor; and Kennedy had been, in impact, bribed by the Linda Greenhouse impact.
As to Justice Thomas’s failure to reveal items, he requested what the coverage was and was advised by his colleagues to not fear about disclosing trip journey or items to assist his aged mom or the boy he’s elevating who has been deserted. Congress has no enumerated energy to require the justices to reveal any items anyway. Such a legislation isn’t needed and correct for carrying into execution the judicial energy of the USA. Steven Gow Calabresi, Elise Kostial, Gary Lawson, What McCulloch v. Maryland obtained Mistaken: The Unique That means of “Necessary” isn’t “Useful,” “Convenient,” or “Rational”, 75 Baylor Legislation Assessment 1 (2023).
Justice Thomas has lived an excellent life. He has exemplified the 4 classical Greek and Roman virtues of: 1) Braveness; 2) Temperance; 3) Justice; and 4) Prudence. Justice Thomas is by far and away the bravest justice on the Supreme Courtroom. He has been vilified for being the non-public hero of the 70,000 member Federalist Society, and he has discovered to dwell with it. Justice Thomas doesn’t eat, drink, or journey to extra. He practices temperance. Justice Thomas is dedicated to Justice. He has caught a golden imply between selfishness and selflessness. And, lastly, Justice Thomas reveals prudence—the flexibility to see forward and to control oneself and self-discipline oneself by means of motive. Justice Thomas additionally lives out the three Christian Virtues of religion, hope, and love. He’s the one justice who is aware of the names of each worker on the Supreme Courtroom in addition to what their struggles with youngsters are. He’s as beloved by the cafeteria employees, librarians, and law enforcement officials on the Supreme Courtroom as he’s by the 70,000 Federalist Society members. In somewhat greater than 4 years, Clarence Thomas will change William O. Douglas because the longest serving Supreme Courtroom justice in American historical past. He has a document all People needs to be very pleased with.