There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. Twenty years of married life have not erased the conventional liberal view of his character etched by Anita Hill’s testimony at his confirmation hearings. Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher. Thomas’ silence during oral argument before the Supreme Court is taken as obvious evidence that he has nothing to say and is perhaps a bit intimidated by the verbal fireworks exchanged by the high profile lawyers and his more, ahem, ‘qualified’ colleagues.
At most liberals have long seen Thomas as the Sancho Panza to Justice Antonio Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.
If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.
Kind of surprising that this would come from Toobin. I hope he’s right. I recall reading an interview with Thomas at Reason back in the eighties, and being pretty impressed with him at the time.
Hmmmm…[searching]…here it is.
[Update a few minutes later]
Now that I’m reading the whole thing, I’d urge everyone to read the whole thing. Really.
The prospect of a serious judicial rehabilitation of the Tenth Amendment is real, though perhaps not immediate. And change this sweeping is unlikely to come simply because a relative handful of judges and lawyers change their minds on an issue of constitutional interpretation. A broader change would need to take place in society so that the idea of transferring more activities from Washington to the states appeals to public opinion to the point where presidents appoint judges who share this philosophy, the Senate confirms them, and the new majority begins to set a new direction for the law.
Arguably, we are nearing a zone where something like that could happen. The apparent Republican front-runner Governor Rick Perry has strong views on the Constitution. His book Fed Up! Our Fight To Save America From Washington is essentially an essay calling for a return to the concept of a federal government limited to its enumerated powers. Let unemployment stay above 8 percent through November of 2012 and President Perry could be sending the names of judicial nominees to a Republican Senate. With a couple more allies on the Supreme Court, Justice Thomas could get pretty close to the lava pits of Mount Doom.
I have to confess, I like the LOTR analogy.
Thomas is, of course, imperfect, but he’s the least statist of the Supreme Court justices by a long shot. He’s a consistent and solid legal scholar–much more so than the more left-leaning justices. Which doesn’t have to be the case–we’ve had high-quality leftist jurists in the past. I think the difference is that today’s strain loves the state much more than the old variety did.
Where he tends to go wrong is in deference to state governments (probably out of a sense of wanting to restore state power, which I generally agree with, at least in the sense of the states checking federal power). So local cops get to crap all over the Fourth Amendment with Thomas, but he’ll slap down the federal government anytime he thinks its escaped what he thinks is its proper bounds.
I don’t think that government has a role in telling people how to live their lives.
All he needs is to lose the doubt and add some colleagues.
LOTR analogy, yes. The question now is whether Kagan or Sotomayor gets to be Gollum.