The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative’s Perspective
By Henry Mark Holzer
McFarland & Company, Inc. (222 pages)
Supreme Court Justice Clarence Thomas has been a punching bag for the Left ever since his bruising confirmation hearings. Failing to derail his nomination with Anita Hill’s ambush of unsubstantiated sexual harassment charges, the Left has attacked Thomas ever since on everything from betraying his race to being a right-wing ideologue in the shadow of Justice Scalia. I have always thought that he was unfairly maligned during his confirmation hearings and that he has been given short shrift as an independent jurist who takes his constitutional responsibilities to interpret - not invent - the law seriously.
Now comes along a book that should make every one of Justice Thomas’s Leftist critics immediately apologize for their lies about him (which, no doubt, they are too cowardly and intellectually dishonest to do): The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative’s Perspective by Henry Mark Holzer. Mr. Holzer has written the definitive rebuke to Clarence Thomas’s detractors in the media, academia and the political elite. In doing so, he also provides an excellent survey of the history and current landscape of constitutional law for anyone generally interested in this subject.
Mr. Holzer is a constitutional lawyer and professor emeritus at Brooklyn law School. In his book, Holzer has painstakingly compiled and analyzed Thomas’s considerable body of opinions – both in the majority and in dissent – and analyzed them thematically to demonstrate the quality and depth of Thomas’s jurisprudence. Holzer draws our attention to what Justice Thomas actually says, with no biased filters in the way. As Holzer states in his Introduction, “In this book, Thomas’s jurisprudence will be gleaned extensively from his own words, not from what others have reported about what Thomas has written.” In addition to quoting extensively from Thomas’s decisions and placing them in proper context, Holzer has included appendices that give the reader a handy reference list of all of Thomas’s opinions.
What comes through is Thomas’s commitment to remain true to the Constitution’s core principles of federalism, separation of powers, regard for individual liberties and judicial restraint within the framework the Founding Fathers intended to be applied to any case or controversy involving the interpretation of the Constitution. He believes that the judge's task is to identify and apply the enduring principles embedded in the text, not to invent new ones. Since the precise words of the constitutional text alone may not provide a definitive answer to their meaning, judges are obligated to look next at the structure and animating principles of the Constitution as a whole and then to the Founding Fathers’ own thoughts and beliefs as expressed in their writings, deliberations and speeches. The next step is to study prior cases that deal with the same or similar issues for valuable guidance. However, since these precedents are one step removed from actual primary sources, they cannot be blindly obeyed in all circumstances lest they be proved wrong.
This ‘originalist’ methodology of constitutional interpretation – a focus on text, structure and history to figure out what was intended to be achieved by the authors of the document the judge is interpreting - is the polar opposite of the results-oriented, social engineering approach of the more liberal wing of the Supreme Court, represented today by Justices Ginsberg, Breyer, Stevens and Souter. They believe in the concept of a “Living Constitution” that can be molded to suit their own policy preferences. In doing so, they have created a morass of inconsistent decisions using unpredictable standards for reaching their unsupported conclusions. In Holzer’s words, this anti-democratic judicial law-making “removes from the public forum and from those politically accountable, and thus from the electorate itself, important issues of social, economic, and other policy, and reposes those issues in nine unelected philosopher kings and queens appointed for life.”
Judge Bork once said, when asked why he wanted to become a Supreme Court Justice, that a seat on the nation’s highest court would offer him an “intellectual feast”, which was apparently an end in itself as far as Bork was concerned. Justice Thomas also welcomes the intellectual challenge. But, as Holzer clearly demonstrates, Thomas realizes that in the end what counts are the practical consequences of his decisions. Thomas’s humanity and common sense come through again and again in the many opinions that Holzer has so diligently presented to us for ready access.
Thomas’s detractors frequently complain that he has forgotten where he came from and that he has turned his back on his fellow African-Americans and the poor. Professor Holzer has destroyed this stereotype completely. His case in point is a school voucher decision in which Thomas joined the majority to find that Ohio’s school voucher program did not violate the Establishment Clause of the First Amendment nor the due process clause of the Fourteenth Amendment even though it impacted on religious schools. Thomas’s typical Leftist critic would claim that he was merely giving in to the fundamentalist religious crowd that wants to increase religion’s influence in our schools, using school vouchers as their ticket, and that he was reflexively bowing at the alter of states’ rights. Holzer shows us the real Clarence Thomas through his own words in a concurring opinion.
Thomas opened his concurring opinion with a quotation from Frederick Douglass: “Education…means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light by which men can only be made free.” Then he pointed out how Ohio’s voucher program was fulfilling the promise of Brown v. Board of Education to bring quality education to minority students. Finally, he exposed how the secular progressives’ abuse of the Establishment Clause, by wielding it against the states when they incorporated it into the Fourteenth Amendment’s due process clause, harms the very people they profess to be concerned about:
“Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in greatest need.”
Professor Holzer also discusses Justice Thomas’s thoughtful dissent to the Supreme Court’s eminent domain decision known as Kelo v. City of New London. In that case, the Supreme Court decided by a 5-4 majority that the City of New London was entitled to condemn private residences in order to turn the homeowners’ property over to private developers under the Fifth Amendment’s provision that allows the taking of private property for “public use’ so long as there is just compensation. Holzer quite properly criticized the majority for applying “the coup de grace to whatever strength the Takings Clause may have had left after the Court’s many years of emasculating it.” And he praised Justice Thomas’s dissent as “among the finest Thomas produced during his fifteen terms on the Court.”
Thomas applied his usual originalist methodology of interpretation by carefully analyzing the phrase “public use” from a historical and textual perspective. However, Thomas did not stop there. Holzer makes sure that we understand Thomas’s deep concern for the innocent victims of the Court’s ill-conceived decision – “the powerless groups and individuals the Public Use Clause protects” - who will suffer the indignity of being uprooted from their homes. Thomas concluded that the Public Use Clause was not intended by the Founding Fathers to embrace “a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenues, but which is also suspiciously agreeable to the Pfizer Corporation.”
It is absolutely astounding to hear these words from a conservative jurist, in effect criticizing his liberal brethren for abandoning the poor in favor of powerful corporate interests. If not for Professor Holzer’s thorough examination of the cases and quotations that he selected for his book, the real Clarence Thomas might have remained conveniently obscured.
Both Scalia and Thomas are near absolutist in opposing governmental restrictions on freedom of speech, particularly political speech. In order for a restriction on core political speech to survive constitutional challenge, it must be narrowly tailored to serve a compelling governmental interest. Justice Thomas, in dissenting from the Court’s upholding of restrictions on campaign contributions and expenditures in the Bipartisan Campaign Reform Act of 2002, called it “the most significant abridgment of the freedoms of speech and association since the Civil War.” He pointed out, in Holzer’s words, the majority’s “warped hierarchy of free speech values” in being willing on the one hand to hold that the market place of ideas should be fully open to flag burners, nude dancers and pornographers while opposing unfettered participation in political campaigns on the dubious grounds of reducing the opportunity for corruption.
Yet Professor Holzer draws our attention to a major difference in freedom of speech jurisprudence between Scalia and Thomas. Thomas more carefully considered the practical consequences of his decisions on real people rather than hew rigidly to abstract legal doctrine for its own sake. This comes through loud and clear in a case involving the conviction of three white men in Virginia who burned a cross on a black neighbor’s lawn in violation of a Virginia statute that prohibited cross-burning. Holzer takes us through Thomas’s thinking, as he weighed whether such an act – as odious as it was – should be protected as expressive speech or treated as a crime of intimidation. While Scalia joined the majority in striking down the Virginia statute as a violation of the First Amendment’s guarantee of free speech, Thomas dissented. Drawing on his own personal experience as an African-American, Thomas observed during oral argument the particular symbolism and effect of the burning cross which, he said, was only “intended to cause fear and terrorize a population.” Force-fitting such conduct into a freedom of speech paradigm was too much for Justice Thomas to swallow.
Professor Holzer points out in a footnote how Thomas’s dissent in the cross burning case reminded him of Justice Holmes’s observation about falsely shouting “fire” in a crowded theater. I wish that Holzer had given us more comparisons in the text between the opinions of Justice Thomas and those of some of the great Supreme Court Justices of the past such as Justices Holmes, Frankfurter and Harlan. I bet the similarities of thought would have been striking. But perhaps this could serve as a sequel to the worthy endeavor that Professor Holzer undertook to set the record straight on Justice Thomas once and for all.
In sum, Professor Holzer has written an eye-opening, must-read book for any serious student of constitutional jurisprudence or for anyone interested in the truth about our principal guardian of the Constitution sitting on the Supreme Court today.
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