U.S. Supreme Court Justice Clarence Thomas (Diego M. Radzinschi)
In a 2015 campaign event, then-candidate Donald Trump declared Clarence Thomas his favorite U.S. Supreme Court justice. Three prominent former Thomas clerks, including one named to a Trump list of potential high court nominees—Judge William Pryor Jr.—undoubtedly share that sentiment and recently described Thomas’ contributions to the law in a Yale Law Journal forum marking the justice’s 25th anniversary.
A “careful, principled, analytic approach.” The “most originalist, and arguably, the most original thinker on the Supreme Court.” Those are just some of the ways his former clerks depicted their one-time boss in these essays. Many other former clerks, as Slate pointed out on Wednesday, have taken posts in the Trump administration—including Jeffrey Wall, Gregory Katsas, Steven Bradbury and Neomi Rao.
What follows are highlights from three of the six articles Yale Law Journal published online this week.
William Pryor, an Alabama-based judge on the U.S. Court of Appeals for the Eleventh Circuit, wrote that Thomas deserves “singular credit for strengthening the case for originalism’s legitimacy.” Pryor was among the jurists Trump first identified last year on a list of would-be Supreme Court nominees.
By writing well-reasoned originalist opinions that can be evaluated on neutral grounds—such as the strength of the historical evidence or the coherence of the textual analysis—Justice Thomas has advanced the methodology of originalism in two ways. First, by providing a second originalist voice on the Supreme Court, Justice Thomas has made it impossible for lawyers and judges to ignore originalist arguments. Second, and more importantly, by writing opinions that often disagreed with those of Justice Scalia, Justice Thomas has rebutted the conventional criticism that originalism is a wooden or results-oriented methodology.
By disagreeing with Justice Scalia on originalist grounds, Justice Thomas has made clear that originalism is not a political tool for reaching “conservative” results. Some commentators have portrayed originalism as a façade jurists and academics hide behind to pursue their policy preferences. But although no methodology is immune from abuse, Justice Thomas’s opinions have established that the advantage of originalism is not that it provides a foolproof method for arriving at uniform results, but that it offers neutral principles suitable for a judiciary in a democratic republic with separated powers. By engaging in debates with Justice Scalia, Justice Thomas has focused our attention on the neutral materials in law—text and history—and weakened the criticism that originalism is results oriented. Originalism may not eliminate reasonable disagreement among jurists, but it helps to discipline legal debates.
William Consovoy of Consovoy McCarthy Park and Nicole Stelle Garnett of Notre Dame Law School examined Thomas’s race-related jurisprudence. The justice’s history, they said, is critical to understanding that jurisprudence. Consovoy is a veteran high court litigator who argued Spokeo v. Robins and Evenwel v. Abbott. He is representing challengers to the admissions policies at Harvard University and the University of North Carolina.
For his allegiance to a “color blind” Constitution, Justice Thomas has been accused of judicial activism, rank hypocrisy, racial self-hatred, and racial betrayal. These criticisms, which profoundly misrepresent Justice Thomas’s views on race, are both unfortunate and avoidable. In the race context, more than any other area of the law, Justice Thomas has explained the reasons for his views, including his desire to restrain government policies that he believes harm minorities.
Justice Thomas’s race jurisprudence is, foremost, informed by his understanding of what the original meaning of the Fourteenth Amendment demands. His race opinions, however, have a moral dimension that distinguish them from his opinions in other areas. Justice Thomas does not just disagree with the legal foundations of these decisions. He believes that they are morally wrong, harmful to their intended beneficiaries, and disrespectful of African-American achievements and abilities.
Elbert Lin, solicitor general of West Virginia, clerked for both Thomas and Pryor. Lin has represented his state in federal and state courts—he delivered the argument in the D.C. Circuit on behalf of states challenging the Obama administration’s Clean Power Plan. Lin’s essay explored the reasons for and the impact of Thomas’ calls for re-examination of the so-called administrative state.
Any former clerk of the justice will recognize some version of his instruction, “go to the front of the train and see who’s driving this thing”—Justice Thomas’s way of saying that he wants to make sure a line of precedent is built on a solid, constitutional foundation.
Although I of course do not claim any direct knowledge of what finally caused Justice Thomas to focus so intensely on administrative law in the October 2014 term, one possible reason was the growing criticism of the administrative state by several of his colleagues.
Aware of this growing concern over the administrative state, and watching his colleagues attempt to rein in agency deference on a seemingly ad hoc basis, Justice Thomas may have felt that the time had come for a trip to the front of the train. Indeed, in Association of American Railroads, Justice Thomas remarked, “We have too long abrogated our duty to enforce the separation of powers required by our Constitution[, and instead] have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”
Lin opened his essay with this line: “In his quarter-century as an associate justice, Clarence Thomas has been the most originalist, and arguably the most original, thinker on the Supreme Court.”
Correction: An earlier version of this story misidentified Judge William Pryor as a Clarence Thomas clerk.