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Thomas on Precedent

October 08, 2007 11:05 AM

Clarence Thomas is blunt when asked how he is “similar” to fellow conservative Antonin Scalia. “Oh no, no,” he says. “How I ‘followed’ Justice Scalia.”

It was the storyline when Thomas first joined the Court back in 1991. Critics and more than a few journalists immediately portrayed him as a “puppet” of brilliant white conservative Scalia. Thomas reflexively did “Scalia’s bidding,” they said, without a thought of his own. Scalia was the “mentor” who pulled the strings.

The storyline is false—and was from his very first week on the Court--but Thomas says that point should be “something that goes without saying.” The assumption he followed Scalia is bigoted, he said, and driven by racial stereotypes. “You know, the black guy is supposed to follow somebody white,” he says.

“There’s no need to tip-toe around that,” Thomas says. “The story line was, well, I couldn’t be doing this myself, he must be doing it for me because I’m black.”

“Again, I go back to my point. Who were the real bigots?” he asks. “It’s obvious.”

That exchange, during a recent interview in his chambers at the Court, triggered a wide-ranging discussion about Thomas’ views on the law, the justices he admires and why he insists that the Constitution must be interpreted as “colorblind.” He talked about why he believes a judge must always put aside his personal views—even when his heart says otherwise. He spoke at length about Justice Harlan’s dissent in Plessy v. Ferguson, the infamous case that upheld segregation, and how he sees that dissent as an inspiration—the very model of judging.

He has a lot to say, and I’m going to spend this week writing about it.

Let’s start first with Scalia. I think we can all agree (as Harry Blackmun’s papers make clear) Thomas doesn’t “follow” anyone—as some of my colleagues in the press have been pointing out for years, Tony Mauro being among the first.

Thomas, to be sure, admires Scalia. In his book, Thomas says he told the Bush White House “Scalia,” when lawyers asked him, as a prospective nominee, the standard question: “Which Justice do you most admire?” (Sam Alito, when asked that question, said “Rehnquist.”) Thomas told me he’d been impressed by Scalia’s opinion in Morrison v. Olson, which the Court had decided when he at EEOC. It had divided the Court 7-1, and Scalia’s dissent is a classic exposition on separation of powers.

“In the Olson case, he had been the lone voice that the independent counsel law actually violated the whole notion of separation of powers, and it turns out now—when the interest changed—that people agree with him. But I just thought it was fascinating,” Thomas said. “He was not going along with something simply because, at that time, it was fairly popular. He was going back to that document, going back to the history and the tradition of that document, and then explaining it in a very rational and well-written way.”

But Thomas parts ways with Scalia on significant issues—especially, as most of you know, on the issue of stare decisis, which is Latin for “let the decision stand.” That principle maintains stability in the law and acts as a restraint on judges. All justices say they believe in stare decisis—and they testify to that effect in their confirmation hearings--but all of them also are willing to set it aside when they think the Court got it wrong in the past.

Thomas and Scalia, for example, have voted to overturn Roe v. Wade because they don’t think a right to an abortion is in the Constitution. This past term, they also would have overturned other decisions, including a recent one that had upheld the landmark McCain-Feingold campaign finance reform law. But other conservatives—John Roberts and Sam Alito--instead took a more cautious approach and held the Court back.

Liberal justices walk away from the principle, too. In recent years they overturned cases, for example, that had allowed the death penalty for the mentally retarded and for juveniles. They also overturned a 1986 decision that allowed states to prosecute homosexuals for private, consensual sex. And they have indicated that some of the Court’s recent decisions will not have staying power—that they will overturn those cases the moment the Court’s membership changes.

But of all the justices, Thomas is the one most willing to rethink old cases. In Ken Foskett’s insightful book, Judging Thomas, Scalia said Thomas “doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, ‘let’s get it right.’"

Thomas says Scalia’s claim is an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution. 

But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.

“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.

“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”

That willingness to “think it through” separates Thomas from Scalia in a number of cases.

“Maybe you can’t change it, but at least let’s make it coherent as to what happened. You can accept the precedent, but you should at least try to see what went on,” he says. “You go back to the document. You go back to the language of the Constitution, to the history, to the tradition. You go through it all, and then you compare that with the precedent.”

And at what point does a judge deviate from the precedent?

“That’s an individual decision on the part of judges. The judges to whom--or for whom--stare decisis applies most are the judges on the courts below us: the courts of appeals, the district courts, the magistrate judges, the bankruptcy judges, etc.

“Up here, this is the end of the line, and the only people who could revisit—in particular—constitutional cases are the members of this Court,” Thomas says. “In the statutory cases, Congress can revisit that. So you are less apt to change a precedent—because it can be corrected in the legislature, as opposed to this being the sole place that it can be changed.”

Thomas says he believes in stare decisis, especially in the statutory cases. If it’s a choice between precedent and what he considers a correct reading of the Constitution, though, he’s more willing to go to the Constitution. That’s not “radical,” he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error.

He points out that a rigid adherence to precedent would mean Plessy v. Ferguson still would be on the books. Plessy was established doctrine, 58 years old, when it was overturned in Brown v. Board of Education.

That’s not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.

In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say “no more.” He suggested as much in his concurring opinion in United States v. Lopez, when the Court in 1995 struck down part of the Gun-Free School Zones Act as exceeding Congress’ power under the Commerce Clause.

Although Thomas suggested the Court should reconsider its approach under the Commerce Clause—which he believes is inconsistent with the Constitution and is a relatively recent innovation—he also stressed that “this extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions.”

The analysis does suggest, he wrote in his concurrence in Lopez, “that we ought to temper our Commerce Clause jurisprudence.”

Thomas sees precedent as the engine--or, in a different analogy, the bedrock. When you build a house or a barn, you have to get to solid ground to lay the foundation. So you dig. If you hit water, you keep digging. If you hit mud, you keep digging. Thomas wouldn’t stop until he hit the firm footing of solid ground.

October 8, 2007 | Permalink | User Comments (34)

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In light of Mr. Toobin's recent comments about Justice Thomas and his supposed "rage," I would like to thank you for the more fair and analytical approach to Justice Thomas' tenure on the Court.

Posted by: jason | Oct 8, 2007 1:19:44 PM

Sadly, Thomas would keep digging a hole when more enlightened persons would instruct you to stop digging. Knowing Thomas is onboard with the most failed PRECEDENT this country ever had to endure squatting in the WHITEWASH HOUSE, should be cause for alarm in most legal circles anywhere. If he also quoted the statement, "you might get up to the caboose and find nobody is in the engine" is a fools analogy since you can never go up to the caboose unless you have decided to proceed backward, as the case with Thomas may exactly be that...going backwards.

Posted by: daddy | Oct 8, 2007 1:21:53 PM

This is very revealing to say the least. One would think that the justices would be above all the petty garbage and make decisions on the law and constitution. Instead, we have an angry white man trapped in a black man's body. Really sad!

Posted by: Bec67 | Oct 8, 2007 3:00:44 PM

daddy - liberals have been going backwards for sometime on fiscal and economic policy. But your right, when it comes to investing consitutional rights to partially deliver babies so you can kill them, you guys are spot on.

Thomas is the real sanity on the Supreme Court and history will be kind to him and look very harsh on his pro-babykilling, anti-democratic critics.

Posted by: Steven Souter | Oct 8, 2007 3:15:03 PM

if you are comfortable partially delivering a baby before sucking it's brains out being a constitutional right, then more power to you. I am not sure our forefathers read that into the constitution.

Also, if you want a Supreme Court that is anti-victim, pro-criminal, anti-free political speech and practically pro-terrorist, then keep with precedent. But I, like millions like me, will not rest until sanity is brought back to the Court. FYI - we are just beginning.

AND with Hillary Clinton leading your ticket in 2008, you have much to fear. An election of a GOP President in 2008 will seal the deal on rolling back the social injustice the left has wrought on the Court.

Posted by: Steven Souter | Oct 8, 2007 3:41:03 PM

The negative comments above are merely common people throwing virtual stones at the elite. Perhaps a reminder that Thomas made it to the highest Court will awaken those who deride to their place - not on the Court. The same could be said about mudslinging at any member of the Supreme Court.

Posted by: SC Supporter | Oct 8, 2007 3:43:58 PM

Hilarious that Thomas claims that "he believes in stare decisis, especially in the statutory cases." Interesting votes in Antitrust cases recently then, especially *Leegin,* which overturned a nearly 100-year old interpretation of the Sherman Act, which, obviously, is a statute.

The man is an unprincipled hack. And I've lost absolutely all respect for JCG on account of her enabling this noxious goon & presenting him as though his "jurisprudence" makes any sense.

A professed originalist who *never* reckons with the fact that the Congress who passed the 14th Amendment *clearly* supported Affirmative Action? (Ever hear of the Freedman's Bureau? The 1860s Congress was all about race-based preferential treatment programs, but CT's supposedly strong commitment to "originalism" vanishes there). Get real. The guy is a hack who abandons his originalist principles whenever they become inconvenient. Such as when he wishes to chop down affirmative action or allow businesses to price fix.

Posted by: Reader | Oct 8, 2007 3:57:22 PM

Thomas uses the example of a slave, which is ironic because he volunteered to be the slave of the rich and powerfull who handed him a seat on the court for which he was, if qualifications and experience counted, behind about 5 million more qualified lawyers and jurists who were in line before him. Maybe it is an extreme sense of gratitude, but if you want to know how Thomas will vote, here is the template: In acase involving the federal government and any other party, the feds always win. In a case involving a state government and any party (other than the feds), the state wins. Going down the food chain, in a case involving a big company and any other party, the big company wins. In a case involving another corporation and an individual, the corporation wins. Civil rights and personal injury plaintiffs always lose. In rare cases where his vote will not make a difference, Thomas may blow steam in favor of a class he would decide agaisnt, if it will advance one of his pet, retrograde theories of law. What a gift Bush #1 gave our country. Thomas is a small minded, man who seeks revenge against those who opposed him along with what he perceives to be their allies. lucky for him, getting revenge does not interfere with serving his masters because the big government, military industrial complex are usually on the other side in cases invilving Thomas' enemies. He is pathetic.

Posted by: Focuser | Oct 8, 2007 4:30:25 PM

"Thomas is a small minded, man who seeks revenge against those who opposed him along with what he perceives to be their allies."

How interesting. One could easily say the same about Thurgood Marshall, who wholeheartedly subscribed to the leftist view that "two wrongs make a right" in ruling that white people should be discriminated against to compensate for past wrongs against blacks.

Posted by: Poster | Oct 8, 2007 5:45:41 PM

Surprisingly, Ms. Greenburg's analyses is rather fair.

I have read most of Thomas's decisions and they are very fair and reasonable.

Unlike our "enlightened" liberal judges (i.e. Stevens, Souter, Breyer, and Ginsburg), Thomas does not make up provisions of the constitution.

I don't care what you think about abortion - it is in no way protected by the constitution.

Posted by: Eugene | Oct 8, 2007 5:47:04 PM

White liberals are quite content when black civil rights "leaders" talk about the great suffering it causes blacks even to contemplate the sight of a noose; they feel that "pain." But let a proud black man like Clarence Thomas speak of the humiliation he feels when liberals automatically assume he cannot think for himself and could not possibly have succeeded without their "help" in codifying black inferiority with affirmative action programs, they begin to squirm. White racism is very subtle and is cloaked in "compassion," but it is racism nonetheless. And the "compassion" pays off handsomely at election time when over 90% of blacks vote Democrat.

Posted by: mhr | Oct 8, 2007 7:28:20 PM

Poster, you denigrate Marshall by writing that he "wholeheartedly subscribed to the leftist view that "two wrongs make a right" in ruling that white people should be discriminated against to compensate for past wrongs against blacks."

Actually, that view belonged to the original framers of the 14th Amendment. Ever hear of the Freedmen's Bureau? Their programs were clearly forms of what we call "affirmative action."

Strangely, the "principled" "originalist" Thomas pays them no heed. His pretensions to being a serious jurist are laughable, as is JCG when she attempts to inflate his deservedly low estimation in the legal community.

Posted by: Reader | Oct 8, 2007 10:28:24 PM

See also Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753, 754 (1985) (“Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks.”)

Here's some further info:
Carl Brody noted that “Congress proposed the 1864 Freedmen's Bureau Bill with the specific intent to provide special assistance to the newly freed slaves” and that the “legislation specifically designated African-Americans as the beneficiaries of programs meant to assist in the transition from slavery.” Carl E. Brody, Jr., A Historical Review of Affirmative Action and the Interpretation of its Legislative Intent by the Supreme Court, 29 AKRON L. REV. 291, 294 (1996). Given that “Congress debated the Fourteenth Amendment and the 1866 Freedmen's Bureau Bill simultaneously,” it would be highly incongruous to read a “color-blind” principle into the Fourteenth Amendment in the face of such strong evidence of its framers’ contrary intent. See id. at 296 & n.25 (citing HARRY J. CARMAN ET AL., A HISTORY OF THE AMERICAN PEOPLE SINCE 1865 29–31 (1961)) (noting that “while the Fourteenth Amendment was being debated in the House, the Freedmen's Bureau Act was being debated in the Senate; every single senator [who] voted for the Amendment also voted for the Freedmen's Bureau Act.”); see also Michael J. Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 315 (1991) (stating that the “original intent argument against affirmative action is . . . weak [ because t]he historical record reveals that the same Thirty-ninth Congress that wrote the Fourteenth Amendment contemporaneously enacted race-conscious statutory schemes designed to benefit southern freedmen”).

Posted by: Reader | Oct 8, 2007 10:31:36 PM

A few things:

1. Proving that the Freedmen's Bureau existed doesn't prove affirmative action is the right way to go about things. There are points to be made on both sides of the issue, in case you didn't notice.
2. Citing Wikipedia in matters political is like citing a press release from a campaign. It isn't exactly an authority in this context.
3. For my two cents, Clarence Thomas is an educated, intelligent man. I was very impressed to read his life story and how it influenced his views. I admire him for having persevered through his political opponents' dirty tricks. As an American, I'm proud that he is a member of the Supreme Court.

Posted by: Reader's Right Brain | Oct 8, 2007 11:06:51 PM

"Reader" apparently (a) doesn't realize that the 14th amendment applies only to the states, not to Congress, and (b) doesn't understand the difference between a remedial program and an arbitrary granting of racial spoils. Thomas has never argued that the 14th amendment forbids remedial measures.

Posted by: David Nieporent | Oct 8, 2007 11:10:34 PM

Wow, amazing how Clarence Thomas is "independent minded" if he agrees with them--i.e., the white conservative line--but if someone else who is Black should agree with liberals they are being "oppressed," utter rubbish to me!

Thomas was never meant to be an intellectual appointment because he isn't intellectually deep (and no, reading Ayn Rand isn't like reading Hobbes). But because he says what YOU want, that's a sign of his "genius" and his "individualism." Well, as an African-American man heading off to law school myself let me just say, you conservatives can keep him! We don't need or want him!

Last point about the 14th Amendment. According to Yale Law professor Akhil Reed Amar, the 14th Amendment was passed in part to pass the civil rights laws the Supreme Court would later strike down. Without it the federal government could not pass those laws, so your silly argument--debunked decades ago by the great Justice Hugo Black--that it only applies to the Federal Government is absurd. The 14th Amend has been almost entirely incorporated, and thanks to Hearts of Atlanta Motel v. Katzenbach, civil rights law stretches entirely over the states. But that could very well be in doubt in the long view. It's anyone's guess what a super conservative Roberts Court will do, but if their recent handling of the desegregation cases is any indication, I am not optimistic.

In any case, the overwhelming majority of Black people do not like Clarence Thomas, and that makes me quite happy regardless of what white conservatives think (as if they had any voice in our community anyway!).

Posted by: C. Sadler | Oct 9, 2007 12:19:04 AM

I guess he needs AFFIRMATIVE RASICM, I mean ACTION because without it he could not make it in the real world. Just what we need, a second rate lawyer riding the coat tails of AA and suing us horrible racist white people.
Grow up and quit your whining all of you ignorant, American-hating liberals

Posted by: | Oct 9, 2007 12:38:11 AM

"In any case, the overwhelming majority of Black people do not like Clarence Thomas, and that makes me quite happy regardless of what white conservatives think (as if they had any voice in our community anyway!)."

illustrates the problem in America today. The racism overtly demonstrates is not excusable just because it comes from a designated minority group.

"Our community"? It's everyone's country isn't it? I'm an American - my vote guarantees I have a "say" in your community, just as you have a "say" in mine. The "communities" are one in the same. Playing the 50 year old race card can't take you any further, give it up already.

I find it amusing that you quote the 14th Amendment as precedent for affirmative action as it is espoused today. It's called the EQUAL protection clause for a reason. Equal means equality, not preference. Preference, by definition, is unequal. You approve of inequality as long as you approve of the favored group, and then try to argue that inequality is actually equality. You can't have it both ways.

Posted by: BJ | Oct 9, 2007 12:39:45 AM

C. Sadler writes:

"In any case, the overwhelming majority of Black people do not like Clarence Thomas, and that makes me quite happy regardless of what white conservatives think (as if they had any voice in our community anyway!)."

If Clarence Thomas and "white conservatives" (like CT is the only black conservative out there) don't have a say in "your community", maybe they ought to. I'm not sure the state of "your community" is anything to brag about.

Posted by: hardliner | Oct 9, 2007 12:47:49 AM

Funny isn't it that someone could have read so much about the Freedmen's Bureau and could have so little knowledge of the word 'transition'.

Buying votes from welfare pimps has destroyed the black middle class that was doing so well before the Great Society disaster.

Posted by: harkin | Oct 9, 2007 7:27:34 AM

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