The Transformation Of Justice Clarence Thomas

Do you remember when Justice Clarence Thomas, to the racist left-wing press, was just too dumb to hold a position on the Supreme Court?  He was unable to think for himself, and effectively was a puppet or clone of Justice Scalia.  Adam White, in a 2014 piece at Library of Law & Liberty, collected a small roundup of quotes from the 90s from the leading lights of left-side Supreme Court reporters:

[T]he Left . . . casually assumed, two decades ago, that the newly appointed Thomas would follow Scalia in all things. That’s no exaggeration. The Washington Post’s Mary McGrory asserted in 1992: “Thomas has come on as Scalia’s puppet.”  Linda Greenhouse, of the New York Times, was gentler, but no less prejudiced, when she called Scalia Thomas’s “apparent mentor.”  Newsweek trafficked in outright conspiracy theory: “Not only is Scalia an aggressive and articulate proselytizer but one of his former law clerks now works for Thomas. The clerk, Newsweek has learned, exerts considerable influence over the rookie justice.”  All told, the conventional wisdom was best reflected by an ACLU official, who complained that “Thomas and Scalia are one person with two votes.”

So now, with Scalia gone, Thomas must be a complete irrelevancy -- right?  The funny thing is that, in the intervening two decades, Thomas has somehow transformed from a dope into a genius -- an evil genius, of course, but a person of such powerful (if twisted) intellect that he has singlehandedly turned constitutional law into something that civilized progressives can hardly recognize.

As the latest contribution to describing the transformation of Justice Thomas, consider this piece by Dahlia Lithwick and Mark Joseph Stern in Slate on August 2, headline "The Clarence Thomas Takeover."  First of all, Dahlia and Mark, what do you think of Thomas's judicial philosophy?  Ugh!!!  A few choice quotes:

The justice has spent his career pushing a fringy, right-wing ideology.

[Thomas] has spent more than 25 years staking out a right-wing worldview that can generously be described as idiosyncratic.

[Thomas has] spent his career teetering off the right edge of the federal bench. . . .  

And yet . . . This kook with the "fringy, right wing" "idiosyncratic" views seems to be orchestrating a "takeover" of constitutional law.  How could this possibly be happening?

Lithwick and Stern don't trouble themselves to actually quote any of Thomas's opinions, but perhaps we ought to look at a couple of the more famous ones that have the progressives up in arms.  For example, there is the Thomas concurrence in the 2015 case of Department of Transportation v. Association of American Railroads, where the issue was the authority of the National Railroad Passenger Corporation (aka Amtrak) to issue regulations to the railroad industry.  From Thomas's concurrence:

We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, . . . [w]e never even glance at the Constitution to see what it says about how this authority must be exercised and by whom. 

The Constitution does not vest the Federal Government with an undifferentiated “governmental power.” Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government.  Those Clauses provide that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1, “[t]he executive Power shall be vested in a President of the United States,” Art. II, §1, cl. 1, and “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1.  These grants are exclusive. 

Oh my God, this guy actually reads the Constitution, and quotes from it, and thinks that its text might have something to say about the resolution of the question before us.  Really, can you get more "fringy" and "right wing" than that?  How are we supposed to achieve perfection in human affairs if all-knowing bureaucrats in the administrative state cannot create thousands of pages of regulations and also enforce them?

Then there is Thomas's view that the Constitution ought to be interpreted to make the federal government one of limited powers.  Where can he possibly have gotten that idea -- an idea that could undermine a good half or more of what the federal government currently does?  Perhaps from Article I, Section 8 of the Constitution, as elucidated by James Madison in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . .  

And yet somehow the federal government now claims the power to insinuate itself into every aspect of our lives.  How did that happen?  From Thomas's concurrence in Lopez v. United States (1995):

[O]ur case law has drifted far from the original understanding of the Commerce Clause. . . .  We have said that Congress may regulate not only "Commerce ... among the several States," U. S. Const., Art. I, § 8, cl. 3, but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life.  Unfortunately, we have never come to grips with this implication of our substantial effects formula. . . .  

Read a few of these things and you suddenly realize that this is a guy who understands that the progressive vision of achieving perfection in human affairs through rule by experts is fundamentally incompatible with our Constitution, with its limited and separated powers.  

I don't really have a position on how "smart" Clarence Thomas might be.  Certainly, he can put together a well-written and well-thought-out judicial opinion.  But as readers here know, I don't have much respect for the merely smart.  Pretty much everybody says that Barack Obama is "smart," and maybe they're right.  Obama is so "smart" that he uttered this gem (in 2012):

You know we can’t just drill our way to lower gas prices. . . .  [A]nybody who tells you that we can drill our way out of this problem doesn’t know what they’re talking about. . . .  

Here's the key difference between Thomas and Obama:  Obama is a groupthinker.  He internalizes what he hears others say.  He has never had an original thought in his life.  Thomas thinks for himself.  If the subject is the Constitution, instead of listening to what others say, he reads the document itself, and forms his own views.  And then, although he might be talked out of his views by reasoned argument, he can't be bullied out of those views by social pressure.  That may or may not make him "smart" by conventional measures, but you can see why it makes him a huge threat to the progressive project to supersede the Constitution with an unaccountable administrative state of unlimited powers.