Justice Thomas and Constitutionalism

Via PrawfsBlawg, I've come across a fascinating conference hosted by the N.Y.U. Journal of Law and Liberty on the "unknown Justice" -- that is, Justice Thomas. There are several good articles in the symposium, including Nicle Garnett's contribution regarding Justice Thomas' perspective on the disadvantaged and marginalized. But I want to focus on Professor Stephen F. Smith's contribution: Clarence X? The Black Nationalist Behind Justice Thomas’s Constitutionalism.

The thesis may sound familiar, but neither he nor I are the first to come up with it, and Professor Smith does cite some of the other scholars making the same point, like Mark Tushnet and Angela Onwuachi-Willig. Nonetheless, Parts I and II, making this argument, is a perfectly welcome contribution to the literature.

Part III tries to reconcile this outlook with Justice Thomas as a strict "constitutionalist" (originalist), and here, unsurprisingly, the wheels begin to fall off the wagon. Mostly, we get a reprise of Clarence Thomas' embarrassingly weak "originalist" justification for his Parents Involved opinion. There's the citation to Plessy, which boils down to "any sufficiently old source is a valid 'originalist' warrant, even if it postdates ratification of the relevant amendment by a quarter-century". Then we have the enlistment of Thurgood Marshall as a paladin of constitutional color-blindness thanks to his Brown advocacy, despite the fact that his opinion in Bakke clearly indicates (at the very least) a change in outlook. Finally, and most tragically, there is the tortured attempts to show how color-conscious acts during Reconstruction don't actually conflict with a constitutional color-blindness principle. These aren't that persuasive to begin with, but what's worse is that they don't actually prove anything, except that the two apparently believe that the best offense is a mediocre defense. In a system of government where we presume the state has residual power to act, and the federal government is explicitly given expansive powers regarding racial remediation, a principled advocate needs to provide affirmative evidence showing that government was meant to be restricted from acting in this manner. Simply showing that the way the government acted would have been compatible with a theoretical restriction means jack without some evidence that the framers intended for the restriction to, you know, exist. Absent that, the presumption ought to be deference to the legislature -- a stance which I think Justice Thomas takes on essentially every other issue.

Smith also adds a few new arguments of his own, but they fare no better. Against all evidence, he throws out a stare decisis argument that the color-blind ethos is "settled law" and should not be disturbed this late in the game, despite the fact that obviously the principle has always been and remains heavily contested, as evidenced by the fractured courts in racial preference cases ranging from Bakke to Grutter to Parents Involved (particularly for someone like Justice Thomas, who is perhaps least sympathetic to stare decisis of any sitting Justice, this is spectacularly unpersuasive). Finally, he accuses Justice Thomas' liberal critics of hypocrisy: it is permissible for someone like Justice Marshall to impose his policy preferences into law, but not Justice Thomas. But that misses the point entirely: I have no problem with Justice Thomas articulating his constitutional vision, and I think he does it quite eloquently. I object to the notion that it exists on some superior legalistic plane, whereby his is "constitutionalist" and mine is just "policy". Once the playing field is leveled, I'm happy to pit my vision against his.