Is Clarence Thomas the Supreme Court's Future?by Linda Greenhouse
Last edited Thu Aug 2, 2018, 06:00 PM - Edit history (1)
The conservative justice’s obsession with the past was on full display during the recent term.
'Included in nearly all the commentary about the Supreme Court’s 2017-18 term was the observation that this was the year that Justice Anthony M. Kennedy took a decided turn to the right. For the first time in memory, there was not a single case in which the current court’s longest-serving justice, who announced his retirement on the term’s final day in June, joined the court’s four liberals to make a 5-to-4 majority.
Considering Justice Kennedy’s recent record, along with the indisputably conservative credentials of the man President Trump has chosen to replace him, it’s tempting to shrug and wonder what the fuss over Judge Brett Kavanaugh’s nomination is about, or to assume that not much will change when he’s confirmed. After all, isn’t the Supreme Court’s future already here?
That we are in for years — decades, perhaps — of conservative dominance on the Supreme Court there is little doubt. But I want to frame a different question about the court’s future. What will that conservatism look like? What does a conservative future really mean?
It’s going on 50 years since Warren E. Burger, President Richard Nixon’s chosen chief justice and the first of his four Supreme Court appointees, took his seat in June 1969, initiating the turn to the right that continues to this day. Admittedly, it’s been a fitful journey rather than a steady march. Different expressions of conservatism have been on display, including the states-rights revival under Chief Justice William H. Rehnquist; the “originalism” of Justice Antonin Scalia and, currently, the grumpy the-prosecution-is-never-wrong-and-the-government-is-always-right jurisprudence of Justice Samuel A. Alito Jr.
Against this backdrop, I want to focus on Justice Clarence Thomas and specifically on the record he compiled during the past term. There is something almost discordant about including Justice Thomas in a discussion of “the future” because his highly personal and eccentric jurisprudence would take the court and the Constitution hurtling backward into the past.
That’s no great revelation. He has long insisted that the only legitimate way to interpret a constitutional provision is to give it the “public meaning” it supposedly had at the time it was written. So in 2011, for example, he dissented from a majority opinion written by Justice Antonin Scalia that struck down, on First Amendment grounds, a California law that made it a crime to sell a “violent” video game to a minor without parental permission. “The founding generation,” Justice Thomas wrote in dissent, “would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minor’s parents.” . .
aken individually, the opinions I’ve discussed here may seem quite technical and rather unremarkable. Taken as a whole, as the work of a single justice during a single Supreme Court term, they paint an extraordinary picture of a judge at war not only with modernity but with the entire project of constitutional law.
Is this the future of the Supreme Court? That’s not my argument. Notably, in nearly all these cases, Justice Thomas spoke only for himself. And I have no reason to suppose that Brett Kavanaugh would follow in these footsteps.
My purpose is simply to take issue with the notion that given the court’s strikingly conservative 2017-18 term, we have already seen the future. That’s far too easy a conclusion from the available evidence. There is a very long game being played here. Young people graduating from law school today have never lived in a world in which Clarence Thomas was not on the Supreme Court. The very fact of his position and his persistence makes opinions that would have been hooted out of the room a few decades ago look respectable in many eyes. In 1997, in Printz v. United States, he was the first modern justice to assert that the Second Amendment guarantees an individual right to own a gun, and to invite anyone interested to bring the right case to a Supreme Court newly open for Second Amendment business. It took a mere 11 years, and we were handed District of Columbia v. Heller.'
https://www.nytimes.com/2018/08/02/opinion/contributors/clarence-thomas-supreme-court-conservative.html?
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