Justice Thomas Book

The Supreme Court Opinions of Clarence Thomas, 1991-2011(Second Edition)

Henry Mark Holzer

ISBN 978-0-7864-6334-3
appendices, notes, index
219 pp. hardcover 2012

McFarland & Co., Publishers

Table of Contents: Scroll down.

Selected reviews: Scroll down.

To view a video of Professor Holzer's lecture about the first edition of this book and Justice Thomas, delivered at The Heritage Foundation, November 14, 2007, please Click Here or at http://www.heritage.org/Press/Events/ev111407a.cfm. When there, click “View Event.”

Book Description

As an associate justice of the Supreme Court, from 1991 to 2011 Clarence Thomas has written some 450 opinions. Thousands of Thomas’s eloquent and thoughtful words are thus available for Americans to examine. Yet much of the public still bases its opinion of Thomas on the words of the American media, going as far back as his bruising confirmation battle of 1991. Widespread, uncritical acceptance of glib assumptions has greatly distorted the record and even the character of this formidable justice.

This second edition, The Supreme Court Opinions of Clarence Thomas, 1991-2011, offers professional and lay readers alike the opportunity to consider the real Clarence Thomas—the formidable intellectual and forceful defender of the Constitution, amply represented by his own writings. The book analyzes Justice Thomas's most important majority, concurring, and dissenting opinions from 1991 through 2011. Professor Holzer argues that Thomas’s opinions reveal a consistent adherence to the principles of federalism, separation of powers, limited judicial review, and regard for individual rights, all as contemplated by the framers of the Constitution. The volume contains copious notes and an appendix listing every one of his majority, concurring and dissenting opinions.

TABLE OF CONTENTS

Acknowledgements

Introduction

1. “We the People”: The Constitution of the United States

2. “Further declaratory and restrictive clauses”: The Bill of Rights

3. “Shall be vested in”: Separation of Powers

4. “The powers not delegated”: Federalism

Tenth Amendment

Commerce Clause

Necessary and Proper Clause

5. “One Supreme Court”: Judicial Review

Judicial Restraint

Statutory Interpretation

Stare Decisis

Thomas and Scalia

6. “Congress shall make no law”: First Amendment

Establishment of Religion

Free Exercise of Religion

Freedom of Speech

Right of Association

7. “Other enumerated rights”: Fourth, Fifth, Sixth, and Eighth Amendments

Fourth Amendment

Fifth Amendment

Sixth Amendment

Eighth Amendment

8. “No state shall”: Fourteenth Amendment

Privileges or Immunities

Due Process of Law

Equal Protection of the Law

Conclusion

Appendix A. Opinions of Justice Thomas

Appendix B. Statutory Interpretation Opinions of Justice Thomas

Notes

Index

Selected Reviews

THE SUPREME COURT OPINIONS OF CLARENCE THOMAS, 1991-2011

The first pre-publication endorsement is from Professor Robert F. Turner, Co-Founder of the Center for National Security at the University of Virginia School of Law: Holzer’s accessible book recounts the story of a highly principled, remarkably consistent justice who understands the importance of beginning interpretation of the Constitution from its language and the perspectives of those who wrote and ratified it.

THE SUPREME COURT OPINIONS OF CLARENCE THOMAS, 1991-2006

Stephen Cox

Liberty Magazine (and elsewhere)

The title word “conservative” may create the wrong impression. At an earlier time in his career, Henry Mark Holzer was a member of the inner circle of Ayn Rand (1905-1982), a writer who has exerted a major influence on libertarian thought. Holzer himself has been a courageous and determined advocate of individual liberties throughout his life as lawyer and professor of law. He leaves to the reader the task of deciding whether Justice Thomas is a libertarian or a conservative (160), but it is plain that he admires Thomas as a proponent of what I have no hesitation in calling a libertarian approach to constitutional law.

Nevertheless, I put “a” before “libertarian approach,” in recognition that libertarians are not all of the same mind when it comes to the interpretation of law. In this respect, there are at least two types of libertarianism:

1. Result libertarianism. Result libertarians believe (or write as if they believed) that anything that advances the goal of individual freedom is meritorious. Thus, if the Supreme Court suddenly decided that Social Security is unconstitutional, not because there isn’t any language in the constitution that authorizes the creation of such a system (which there isn’t), but because Social Security extends more benefits to women than to men (which it does, because women live longer than men) and therefore violates the constitution’s “equal protection” clause – then, well, according to result libertarians, we should all throw a party. In this view, it makes no difference what legal sophistry one uses, so long as one gets a libertarian result.

2. Process libertarianism. Process libertarians believe (and try to live up to their belief) that the best protection for individual freedom is a framework of rational legal processes-- sound laws, accurately expounded. They reject interpretive tampering with national and state constitutions. They assume that someone who does you good by illegitimate means will also do you bad, by the same means. Thus, while most libertarians probably support gay marriage, process libertarians were appalled by the initiative recently undertaken by the mayor of San Francisco, who stepped completely outside the constitutional framework by declaring, in effect, that a state law against gay marriage was invalid in San Francisco. Result libertarians applauded him.

My money is with the process libertarians. I believe that the practical losses one may suffer by being on their side are vastly outweighed by the practical gains. State constitutions are strong on certain individual liberties, and the federal constitution is in most respects a model of libertarian thought. To interpret these documents fairly, giving their words the sense that their authors intended, is good for the cause of liberty, in the short term, usually, and in the long term, almost always. Granted, the first amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” comes far short of erecting a “wall of separation” between church and state (Thomas Jefferson’s phrase [1802], not in the constitution). But I’m not much troubled by “In God We Trust” on our coins, or the eye of God on the Great Seal of the United States. If you are, I think you’ve got too much time on your hands.

But let’s go beyond the issue of practical gains or losses. If you’re worried about intellectual honesty, as Holzer is (8), you are much more likely to find it with the libertarianism of process than with the libertarianism of result. It is simply breathtaking, the degree to which presumed supporters of civil liberties have gone in amending the constitution by judicial interpretation. I am, by profession, a literary historian and critic, and I know I would be laughed out of my profession if, when I interpreted texts, I took the kind of freedoms with fact and logic that judges, lawyers, and professors of law routinely take when they interpret the constitution. To preserve some minimal reputation for honesty, I try to make my interpretations represent the meanings that are actually present in the texts I study. I realize that good authors often create intentional ambiguities, and bad authors often create unintentional ones, but I make every attempt to avoid replacing even those ambiguities with the meanings that I myself would prefer to see.

Of course, no text interprets itself. Even apparently simple texts can pose interpretive challenges. In the Old Testament, I encounter the commandment, “Thou shalt not kill.” The words are not as simple as they look. We know that the people to whom the commandment was given were, in the same set of documents, permitted or commanded to kill certain kinds of criminals and religious enemies. We can, therefore, quite properly conclude that the commandment means, “Thou shalt not murder”– i.e., thou shalt not kill a legally and religiously innocent human being. By interpreting the text in this way, we preserve its original meaning, as determined by our knowledge of its literary context. We interpret, but we do not invent.

Now suppose we go further. Suppose we assume that a text that is so important to so many people ought to be adapted to their changing needs and evolving perceptions of life. Or suppose we simply don’t like the original meaning of the text. So we advance the thesis that there is a wider religious philosophy underlying “Thou shalt not kill,” a philosophy based on the idea that laws are given by God for the benefit of the people, to promote the general welfare. This sounds plausible. And it is . . . plausible. Well, does capital punishment, or the slaying of one’s religious enemies, really promote the general welfare? Perhaps not. And what benefit do people get from killing animals, even to eat their meat? Some experts now claim that a vegetarian diet is much healthier. So we announce, “Thou shalt not kill” means, “Thou shalt not kill any animals.” And suppose we take the next step. Suppose we say that the biblical commandment, in which we have now discovered a prohibition against killing in general, plainly establishes a right to life; and if there is a right to life, then plainly it is a crime to take life. In short, “Thou shalt not kill” is a mandate for the police to arrest anyone who kills an insect.

If a literary interpreter or Bible scholar ever reasoned in this plausible way, even the vegetarian members of his profession would pronounce him mad. Yet this is the process of “interpretation” that the Supreme Court has been applying to the constitution during the past 70 years.

It must be admitted that by interpreting the constitution in this manner, the court has sometimes done much good. In the famous case of Griswold v. Connecticut (1965), for example, it decided that states do not have the right to outlaw the use of contraceptive devices. The Connecticut law in question, which Holzer properly pronounces “outrageous,” was a gross affront to individual liberties (7). But to decide that it was prohibited by the constitution, Justice William O. Douglas had to discover in that document a “right to privacy,” a right that he could locate only among the “penumbras, formed by emanations from [the] guarantees” of the Bill of Rights.

Shall we applaud this exercise in judicial spiritism? I think not. It was patently dishonest. Proceeding in the same way, the court might just as well have found that the emanations and penumbras of the commerce clause (another fecund source of diseased judicial interpretation) prohibit me from writing dirty verses in my diary. After all—to invoke two of the judiciary’s favorite legal fictions-- the diary might at some time be carried into the stream of interstate commerce and might then be found offensive to community standards.

The fact that none of this sounds surprising underscores an important fact: this is the kind of reasoning that the Supreme Court actually uses, as it daily substitutes its own wisdom for the meanings originally inscribed in the constitution and the laws. Often its actions are immediately damaging to individual liberty; but every action that renders the constitution malleable to imaginative reconstruction renders it less capable of defining and protecting liberty in the future.

The full theory of “authorial intent,” or “original intent,” or “originalism,” as it has come to be called in American law, was developed by E. D. Hirsch, Jr., in two important, indeed fundamental, books: “Validity in Interpretation” (1967), and “The Aims of Interpretation” (1976). Hirsch is a literary critic and historian, primarily concerned with the interpretation of literary texts, not with the interpretation of the particular kind of text called a constitution—which brings up a question: Does one really need to use the same rules for every text? What about the popular claim that the constitution is such a peculiar kind of text as to require interpretation by methods that would never be applied to others? One hears that the constitution is “living” and “evolving,” and that it ought to “evolve,” so as to adapt itself to new “conditions.” In other words, we can rid ourselves of bad laws only by treating the constitution as a butterfly that is constantly emerging from a worm.

Of course (as both Holzer and Thomas explicitly recognize), there are a lot of bad laws. So why not get rid of them?

One answer is that there’s no reason to think that nine presidential appointees sitting behind a bench in Washington D.C. will succeed at the task of discriminating the bad from the good, especially when their qualifications for the job consist mainly of political appointment, an exuberant imagination, and a total lack of argumentative scruples.

Another answer is: Go ahead; rewrite the constitution from the judicial bench. But while you’re doing it, ask yourself: What’s the sense of calling it a constitution? Call it something else—call it an essay that is constantly being written, call it a proposal that is always being voted on, call it Super Bowl 2007, call it anything you like, other than a constitution, because the purpose of a constitution is to say how things should be and to keep them that way. Do you believe that anything called a “constitution” could possibly be ratified if its proponents proclaimed, “This is a document that is going to keep changing in unpredictable ways, in a continual process of reinterpretation by people who have been educated to believe that it has no fixed and definite meaning”?

No one would answer yes to that question. Constitutions are written and ratified with the expectation that their meaning will not be changed except by regular and deliberate process of the body politic (as opposed to the internal debates of a politicized judiciary). It is because most of our fellow citizens still cherish that expectation that they are willing to respect decisions that honor the Bill of Rights, no matter how much they may dislike its particular applications. Constitutional guarantees may not extend as far as we might like, but they are no guarantees at all if we grant the idea that the constitution can legitimately be treated as something that is always evolving new meanings, even if a particular new “meaning” momentarily expands the scope of individual freedom. And during the past seven decades, most of the Supreme Court’s new “meanings” have contracted that scope, by licensing new assumptions of power by the federal government.

Enter Professor Holzer, who demonstrates that Justice Thomas is the Supreme Court’s smartest and most consistent advocate of interpreting the constitution according to its authors’ original intent. In the process, Holzer illuminates many of the great controversies of constitutional law, providing a full, though not exhausting, account of Thomas’s contributions to the “three pillars of American constitutionalism—separation of powers, federalism, and judicial review” (22). Holzer’s conclusions, though concisely presented, are based on a complete survey of Thomas’s judicial opinions (which are numerous enough to require 16 pages simply to list, in Holzer’s helpful appendix).

Holzer is always clear and precise, both in his own analyses and in his criticism (favorable or unfavorable) of the analyses of others. He aptly describes “the decades-long metastasis of the ‘Living Constitution’s malignant doctrines into most areas of American constitutional and statutory law” and explores the various intellectually interesting ways in which Justice Thomas has “fought against this anti-constitutional disease” (8).

The appeal of Holzer’s book extends much farther than the audience of Supreme Court watchers and conservatives still angry (and they ought to be) over the controversy that surrounded Thomas’s appointment. The book amounts to a seminar on constitutional law, its history and practice, and on the processes and specialized language of the Supreme Court. Ideas and customs that are ordinarily explicated (badly) at the length of hundreds of pages are swiftly and memorably communicated here.

The literary, as well as the intellectual, value of this book is substantial. Holzer understands the uses of scorn. After quoting some of Justice William J. Brennan’s pompous asseverations--“Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. . . . Its majestic generalities and ennobling pronouncements are both luminous and obscure”--Holzer writes, “Not content to loose this blather, Brennan . . . ” went on to loose some more, which Holzer then cites, to devastating effect (5). The key words are “loose,” which is what you do with your bowels, and “blather,” which is what most people are afraid to call the sage observations of elder statesmen. Holzer’s not afraid.

Thomas, whom Holzer always knows how to quote for the greatest possible effect, turns out to be a good aphorist:

“The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.” (75)

“Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.” (145)

Criticizing his colleagues for a decision giving the federal government virtually unlimited power to regulate commerce, Thomas writes, “Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it” (49).

Holzer’s own aphorisms are also worth quoting. He knows what to do with a metaphor:

“[Justice] Douglas prospected his way through the Constitution. Although what he found was fools’ gold, it glittered enough to satisfy six of his colleagues.” (7)

And Holzer knows how to state a plain truth:

“The concept of a “Living Constitution” . . . means no Constitution at all.” (6)

Holzer identifies the essential issue: Do we have a constitution, or merely a set of judicial dogmas? I hope that the answer is, Yes, we still have a constitution. But if the answer is No to that, then Holzer’s book may help us get it back.

THE SUPREME COURT OPINIONS OF CLARENCE THOMAS (1991-2006)

Joan Swirsky

NewsMax.com (and elsewhere)

March 13, 2007 - The left has always held Supreme Court Justice Clarence Thomas in particular contempt for not embracing their sacred cows of affirmative action and abortion on demand, to name just two “rights” they claim the Constitution of the United States embodies, and for rejecting their image of black people as victims. Assailed by unsubstantiated accusations by Anita Hill at his 1991 confirmation hearings; insulted by, among others, Maureen Dowd of The New York Times; and just a couple of years ago judged harshly for his judicial opinions by the eminent constitutional “expert,” Nevada Democrat Harry Reid, Thomas, to this day, is vilified by liberals who see him as a direct threat to their notion of a “living Constitution,” the function of which they believe is to promote secular-progressive social policies over a strict interpretation of the Constitution, and thereby sound jurisprudence.

Mr. Holzer, a constitutional lawyer and professor emeritus at Brooklyn Law School, has now provided a scholarly – and highly readable – rebuttal to Justice Thomas’s critics, citing many of the 350 cases the jurist has deliberated on and spelling out the reasoning, both philosophical and judicial, that has influenced his decisions. In doing so, Holzer has spared the reader “what others have reported about what Thomas has written,” and instead relied on Thomas’s “written dissents from, and concurrences with, majority opinions … [in] his own words.” According to Joseph Klein of Frontpagemagazine.com, Holzer’s book “should make every one of Justice Thomas’s Leftist critics immediately apologize for their lies about him (which, no doubt, they are too cowardly and intellectually dishonest to do”).

For people like me, unfamiliar with the complexities of constitutional law, Holzer mercifully presents a virtual roadmap of the Constitution, its amendments, and the Bill of Rights that our forefathers so ingeniously created more than two centuries ago. Further, he explains in clear, comprehensible language, the separation of powers among the Executive, the Legislative, and the Judiciary branches of government – all of which serve to explain what he considers the “wisdom” of Justice Thomas’s interpretations.

Mr. Holzer – who is also the author of “Aid and Comfort”: Jane Fonda in North Vietnam and “Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service” (both co-authored with Erika Holzer) – says that Justice Thomas is more an “Originalist” than the justices with whom he now shares the bench, including the stalwart conservative Justice Antonin Scalia.

Originalism, Holzer explains, “is a method of interpreting the Constitution on the basis of what any given provision meant to the people who wrote it, whether the original Bill of Rights, the later Fourteenth Amendment, or any amendment since.” The judges who interpret the Constitution, he adds, “aren’t the ones who wrote it.”

Thomas’s rulings, Holzer says, fly in the face of the social agendas of the liberals who sit on today’s Court – Justices Ginsburg, Breyer, Stevens and Souter –who Holzer calls “unelected philosopher kings and queens appointed for life.” In contrast, Justice Thomas has “uncompromising fealty to those founding documents” – and its core principles of federalism, limits on the power of the federal government in favor of states’s rights, separation of powers, regard for individual liberties and judicial restraint – for which “he deserves to be recognized as ‘The Keeper of the Flame.’”

In case after case – and with enthusiasm that reveals his own allegiance to and love for the bedrock principles of the Constitution – Holzer explains Thomas’s decisions, and often withers the jurist’s critics with insight gleaned from his own prodigious study of each case.

For instance, Thomas joined the majority in finding that Ohio’s school voucher program did not violate the Establishment Clause of the First Amendment, or the due process clause of the Fourteenth Amendment, in spite of its impact on religious schools. Thomas’s leftwing critics claimed that he was pandering to religious fundamentalists and acceding to states’ rights.

But Holzer cites Thomas’ concurring remarks in the decision, in which he quoted Frederick Douglass: “Education…means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light by which men can only be made free.” Thomas then explained how the voucher program was true to Brown v. Board of Education in bringing quality education to minority students, and accused “progressives” of abusing the Establishment Clause by using it as a club against states that incorporated it into the Fourteenth Amendment’s due process clause: “Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in greatest need.”

Justice Thomas also dissented from the Court when it upheld restrictions on campaign contributions and expenditures in the Bipartisan Campaign Reform Act of 2002. Thomas called the Act “the most significant abridgment of the freedoms of speech and association since the Civil War,” and noted the irony that the majority “on one hand holds that the marketplace of ideas should be fully open to flag burners, nude dancers and pornographers, but opposes unfettered participation in political campaigns on the dubious grounds of reducing the opportunity for corruption.”

Today, in what Holzer calls “the arrogant judicial incursions into the war power of the Commander-in-Chief, The Supreme Court has held that enemy combatants are entitled to contest their status, to sue in American courts, to due process of law, to seek habeas corpus relief anywhere in the United States, and to be tried by military commissions only if they are approved by Congress (as they now have been, in the Military Commissions Act of 2006).”

Holzer, in citing the Hamdan v. Rumsfeld case, says that, “only Clarence Thomas fully understands that neither Congress nor the courts have an allowable constitutional role in micromanaging this or any President’s conduct of war.” In this case, the majority ruled that the President’s military commissions were illegal.

In the current political climate, where a Democrat-controlled Congress is challenging the Constitutionally conferred and inarguable right of the president to determine the actions of, indeed command, U.S. armed forces, it is useful to note what Thomas wrote about the Court’s opinion in the Hamdan case. That opinion, he said, “openly flouts our [the judiciary’s] well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs.” He went on to say:

“The Court’s evident belief that it is qualified to pass on the ‘military necessity”. . . of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered.” He went on to say: “Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches [Congress and the President] that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11– even if their plots are advanced to the very brink of fulfillment – our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists ‘red handed’ . . . in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.”

Holzer, in his comprehensive analysis of Thomas’ Supreme Court decisions, soundly discards both the prejudices and malicious misrepresentations that have hounded Thomas for the past 15 years. His book is simply a must-read for legal-eagles and the lay public alike.

THE SUPREME COURT OPINIONS OF CLARENCE THOMAS, 1991-2006:
A CONSERVATIVE’S PERSPECTIVE

Joseph Klein

FrontPageMagazine.com (and elsewhere)

Supreme Court Justice Clarence Thomas has been a punching bag for the Left ever since his bruising confirmation hearings. Failing to derail his nomination with Anita Hill’s ambush of unsubstantiated sexual harassment charges, the Left has attacked Thomas ever since on everything from betraying his race to being a right-wing ideologue in the shadow of Justice Scalia. I have always thought that he was unfairly maligned during his confirmation hearings and that he has been given short shrift as an independent jurist who takes his constitutional responsibilities to interpret - not invent - the law seriously.

Now comes along a book that should make every one of Justice Thomas’s Leftist critics immediately apologize for their lies about him (which, no doubt, they are too cowardly and intellectually dishonest to do): The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative’s Perspective by Henry Mark Holzer. Mr. Holzer has written the definitive rebuke to Clarence Thomas’s detractors in the media, academia and the political elite. In doing so, he also provides an excellent survey of the history and current landscape of constitutional law for anyone generally interested in this subject.

Mr. Holzer is a constitutional lawyer and professor emeritus at Brooklyn law School. In his book, Holzer has painstakingly compiled and analyzed Thomas’s considerable body of opinions – both in the majority and in dissent – and analyzed them thematically to demonstrate the quality and depth of Thomas’s jurisprudence. Holzer draws our attention to what Justice Thomas actually says, with no biased filters in the way. As Holzer states in his Introduction, “In this book, Thomas’s jurisprudence will be gleaned extensively from his own words, not from what others have reported about what Thomas has written.” In addition to quoting extensively from Thomas’s decisions and placing them in proper context, Holzer has included appendices that give the reader a handy reference list of all of Thomas’s opinions.

What comes through is Thomas’s commitment to remain true to the Constitution’s core principles of federalism, separation of powers, regard for individual liberties and judicial restraint within the framework the Founding Fathers intended to be applied to any case or controversy involving the interpretation of the Constitution. He believes that the judge's task is to identify and apply the enduring principles embedded in the text, not to invent new ones. Since the precise words of the constitutional text alone may not provide a definitive answer to their meaning, judges are obligated to look next at the structure and animating principles of the Constitution as a whole and then to the Founding Fathers’ own thoughts and beliefs as expressed in their writings, deliberations and speeches. The next step is to study prior cases that deal with the same or similar issues for valuable guidance. However, since these precedents are one step removed from actual primary sources, they cannot be blindly obeyed in all circumstances lest they be proved wrong.

This ‘originalist’ methodology of constitutional interpretation – a focus on text, structure and history to figure out what was intended to be achieved by the authors of the document the judge is interpreting - is the polar opposite of the results-oriented, social engineering approach of the more liberal wing of the Supreme Court, represented today by Justices Ginsberg, Breyer, Stevens and Souter. They believe in the concept of a “Living Constitution” that can be molded to suit their own policy preferences. In doing so, they have created a morass of inconsistent decisions using unpredictable standards for reaching their unsupported conclusions. In Holzer’s words, this anti-democratic judicial law-making “removes from the public forum and from those politically accountable, and thus from the electorate itself, important issues of social, economic, and other policy, and reposes those issues in nine unelected philosopher kings and queens appointed for life.”

Judge Bork once said, when asked why he wanted to become a Supreme Court Justice, that a seat on the nation’s highest court would offer him an “intellectual feast”, which was apparently an end in itself as far as Bork was concerned. Justice Thomas also welcomes the intellectual challenge. But, as Holzer clearly demonstrates, Thomas realizes that in the end what counts are the practical consequences of his decisions. Thomas’s humanity and common sense come through again and again in the many opinions that Holzer has so diligently presented to us for ready access.

Thomas’s detractors frequently complain that he has forgotten where he came from and that he has turned his back on his fellow African-Americans and the poor. Professor Holzer has destroyed this stereotype completely. His case in point is a school voucher decision in which Thomas joined the majority to find that Ohio’s school voucher program did not violate the Establishment Clause of the First Amendment nor the due process clause of the Fourteenth Amendment even though it impacted on religious schools. Thomas’s typical Leftist critic would claim that he was merely giving in to the fundamentalist religious crowd that wants to increase religion’s influence in our schools, using school vouchers as their ticket, and that he was reflexively bowing at the alter of states’ rights. Holzer shows us the real Clarence Thomas through his own words in a concurring opinion.

Thomas opened his concurring opinion with a quotation from Frederick Douglass: “Education…means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light by which men can only be made free.” Then he pointed out how Ohio’s voucher program was fulfilling the promise of Brown v. Board of Education to bring quality education to minority students. Finally, he exposed how the secular progressives’ abuse of the Establishment Clause, by wielding it against the states when they incorporated it into the Fourteenth Amendment’s due process clause, harms the very people they profess to be concerned about:

“Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in greatest need.”

Professor Holzer also discusses Justice Thomas’s thoughtful dissent to the Supreme Court’s eminent domain decision known as Kelo v. City of New London. In that case, the Supreme Court decided by a 5-4 majority that the City of New London was entitled to condemn private residences in order to turn the homeowners’ property over to private developers under the Fifth Amendment’s provision that allows the taking of private property for “public use’ so long as there is just compensation. Holzer quite properly criticized the majority for applying “the coup de grace to whatever strength the Takings Clause may have had left after the Court’s many years of emasculating it.” And he praised Justice Thomas’s dissent as “among the finest Thomas produced during his fifteen terms on the Court.”

Thomas applied his usual originalist methodology of interpretation by carefully analyzing the phrase “public use” from a historical and textual perspective. However, Thomas did not stop there. Holzer makes sure that we understand Thomas’s deep concern for the innocent victims of the Court’s ill-conceived decision – “the powerless groups and individuals the Public Use Clause protects” - who will suffer the indignity of being uprooted from their homes. Thomas concluded that the Public Use Clause was not intended by the Founding Fathers to embrace “a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenues, but which is also suspiciously agreeable to the Pfizer Corporation.”

It is absolutely astounding to hear these words from a conservative jurist, in effect criticizing his liberal brethren for abandoning the poor in favor of powerful corporate interests. If not for Professor Holzer’s thorough examination of the cases and quotations that he selected for his book, the real Clarence Thomas might have remained conveniently obscured.

Both Scalia and Thomas are near absolutist in opposing governmental restrictions on freedom of speech, particularly political speech. In order for a restriction on core political speech to survive constitutional challenge, it must be narrowly tailored to serve a compelling governmental interest. Justice Thomas, in dissenting from the Court’s upholding of restrictions on campaign contributions and expenditures in the Bipartisan Campaign Reform Act of 2002, called it “the most significant abridgment of the freedoms of speech and association since the Civil War.” He pointed out, in Holzer’s words, the majority’s “warped hierarchy of free speech values” in being willing on the one hand to hold that the market place of ideas should be fully open to flag burners, nude dancers and pornographers while opposing unfettered participation in political campaigns on the dubious grounds of reducing the opportunity for corruption.

Yet Professor Holzer draws our attention to a major difference in freedom of speech jurisprudence between Scalia and Thomas. Thomas more carefully considered the practical consequences of his decisions on real people rather than hew rigidly to abstract legal doctrine for its own sake. This comes through loud and clear in a case involving the conviction of three white men in Virginia who burned a cross on a black neighbor’s lawn in violation of a Virginia statute that prohibited cross-burning. Holzer takes us through Thomas’s thinking, as he weighed whether such an act – as odious as it was – should be protected as expressive speech or treated as a crime of intimidation. While Scalia joined the majority in striking down the Virginia statute as a violation of the First Amendment’s guarantee of free speech, Thomas dissented. Drawing on his own personal experience as an African-American, Thomas observed during oral argument the particular symbolism and effect of the burning cross which, he said, was only “intended to cause fear and terrorize a population.” Force-fitting such conduct into a freedom of speech paradigm was too much for Justice Thomas to swallow.

Professor Holzer points out in a footnote how Thomas’s dissent in the cross burning case reminded him of Justice Holmes’s observation about falsely shouting “fire” in a crowded theater. I wish that Holzer had given us more comparisons in the text between the opinions of Justice Thomas and those of some of the great Supreme Court Justices of the past such as Justices Holmes, Frankfurter and Harlan. I bet the similarities of thought would have been striking. But perhaps this could serve as a sequel to the worthy endeavor that Professor Holzer undertook to set the record straight on Justice
Thomas once and for all.

In sum, Professor Holzer has written an eye-opening, must-read book for any serious student of constitutional jurisprudence or for anyone interested in the truth about our principal guardian of the Constitution sitting on the Supreme Court today.

OUR CONSTITUTION AND THE SUPREME COURT--IS THERE A KEEPER OF THE FLAME?

By Lee Ellis

OpinionEditorials.com (and elsewhere)

Our TV screens have been full, lately, lamenting the fact that some Black Americans felt hurt that President Bush, in an interview with Neil Cavuto, said that a Black presidential candidate was articulate. Joe Biden also had the same problem when he thought he was complimenting a presidential candidate. We seem to have gotten to an age where compliments for those who have moved on from Sharpton, Jackson and members of the Black Caucus, are now regarded as offensive..

But where were all these people when a bright young Black man born in 1948 was nominated to replace Thurgood Marshall as Justice on the Supreme Court by George H.W. Bush in 1991?

Clarence Thomas seemed to receive the same verbal pummeling as is received today by President George W. Bush. All manners of attacks were staged to keep him from being appointed, and in his years on the Court, his decisions have also been assailed by many leftist pundits and politicians to the left of center.

In 1994, Douglas T. Kendall, executive director of Community Rights Counsel, a public interest law firm, wrote in The Washington Post a scathing article against Justice Thomas, when it was discovered that he might be selected to replace William Rehnquist as Chief Justice if he retired or passed away. Supposedly Justice Scalia said "Thomas doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

It is reported that thirty-four times during the John Roberts hearing, the senators and the nominee mentioned stare decisis -- the Latin term for letting existing precedents stand.

In other words, we get down to whether or not we have justices who are willing to state that a previous ruling was based not on our Constitution but rather on a European one or on legislative opinions rather than judicial interpretations of our American Constitution as created by our forefathers, and is therefore wrong and thus needs to be changed.

Is there a Justice who really believes in being a true Constitutionalist? Is someone keeping the flame of our founding fathers from dying out?

Yes, says Henry Mark Holzer, a professor-emeritus at Brooklyn Law School and author of many articles and books. (www.henrymarkholzer.com ) as well as editor of the Supreme Court Watch (www.supremecourtwatch.info). He writes that there is truly a “Keeper of the Flame” in the Supreme Court and he proves it with a brand new book just published by McFarland and Co. this winter. Titled, The Supreme Court Opinions of Clarence Thomas, 1991-2006, it has a subtitle, A Conservative’s Perspective. Professor Holzer believes that Associate Justice Clarence Thomas has always been a staunch defender of the Constitution. In his introduction to the book, Holzer writes, “Attacks on Justice Thomas have been unconscionable distortions of an unambiguous and distinguished record. Simple justice requires they be rebutted because his opinions, often eloquent, reveal him as a conservative who understands the role of a Supreme Court Justice, the methodology of proper constitutional and statuary adjudication and the appropriate resolution of the many issues that have come to the Court during his tenure.”

While this book does not go into biographical details of his life, we have to remember that Clarence Thomas has written nearly 350 opinions. Thus, thousands of his eloquent and thoughtful words are in this book for Americans to examine. Assuming that my readers are seekers of truth, you can obtain this book on line at www.mcfarlandpub.com or phone 1-800-253-2187. Although most of you are familiar with his life, let me remind you that Clarence Thomas was born in Pin Point, Georgia, a small community outside Savannah. His grandfather believed in hard work and self-reliance and would counsel him to "never let the sun catch you in bed in the morning". He attended both Holy Cross and Yale Universities. In 1975, when Thomas read Race and Economics by economist Thomas Sowell, he found an intellectual foundation for this philosophy. The book criticized social reforms by government and instead argued for individual action to overcome circumstances and adversity. Thomas later said that this book changed his life. Another favorite book of his is Ayn Rand’s “Atlas Shrugged.”

Rush Limbaugh recently said about the theme that stands out when reading about these opinions of Justice Thomas, “It is not a judge’s job to make social policy; much harm can . . . result when they try.”

And as I wrote in 2005, “Yes, Congress does advise and consent with an up and down vote, but not with a filibuster or a refusal to allow a full vote. The choice of a federal judge appointee has always been with, and should remain, the domain of the Executive branch of government led by the President of the United States of America. Will our Supreme Court continue to be a Constitutional one, or will it rival Congress as a new Legislative branch? It is up to us to back the President's choice of Supreme Court judges who will defend and protect the true meaning of our most revered document, the American Constitution!” Thanks, Professor Holzer, for helping so many of us better understand our Constitution and learning more about decisions made in our Judicial branch by Justice Clarence Thomas.

JUSTICE THOMAS' DAY JOB

Thomas Sowell

Human Events

Over the years, there have been a number of books written about Supreme Court Justice Clarence Thomas. Some of these books have looked at Justice Thomas politically, some biographically or racially -- and with various degrees of bias or inaccuracy.

Now, more than a dozen years since Clarence Thomas became a member of the High Court, there is at last a book about his day job -- interpreting and applying the law.

More than 300 of Justice Thomas' Supreme Court opinions are quoted and analyzed in a recently published book, "The Keeper of the Flame" by Henry Mark Holzer.

Unlike most of his fellow justices, Clarence Thomas writes in a very direct and straightforward way that cuts through the fog of rhetoric to the heart of the issues involved.

One of the themes that runs through these many opinions on a wide variety of issues is that it is not a judge's job to make social policy -- and that much harm can result when they try. This harm extends far beyond the particular people involved in the cases that come into court.

The consequences of the errors and uncertainties generated by judicial activists reverberate throughout the whole society for years, and even generations, to come.

In one of his dissenting opinions, Justice Thomas declared that the Supreme Court was making "policy-laden judgments that we are ill equipped and arguably unauthorized to make" -- and that this represented "functioning more as legislators than as judges."

He added: "The outcome of constitutional cases ought to rest on firmer ground than the personal preferences of judges."

That firmer ground is the original meaning of a law when it was passed. If that meaning needs to be changed, then it is up to elected officials to change it, not judges. That is what the democratic process is for.

When legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on. But when judges change the law by reinterpreting it, based on the "evolving standards" of a "living constitution," nobody knows that they have violated the law until after the fact, when it is too late.

Retrospective laws are expressly forbidden by the constitution. But the "evolving standards" of a "living constitution" amount to retrospective laws by another name.

In one case, Justice Thomas said that if "I were a member of the Texas legislature," he would have voted against the law that the U.S. Supreme Court was examining. But, as a member of that court, his duty was to vote on the constitutionality of the law, whether he agreed with it or not -- and he voted that the law was constitutional.

In another case, he said that the constitution "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Again, it is up to the electoral process to do that, not an unelected judiciary.

However, when legislation violates the constitution, Justice Thomas has not hesitated to vote to strike it down, as with so-called "campaign finance reform" in the McCain-Feingold bill or the laws that allowed local politicians to seize private property and turn it over to other private individuals under "eminent domain."

In these and other cases, what mattered was what the constitution said -- and what that meant when it was said. Justice Thomas has therefore refused to read the constitution's ban on an "establishment of religion" as if it meant a "wall of separation" between church and state, requiring the obliteration of religious symbols from public property.

There is no such wall in the constitution, and an "establishment of religion" had a very plain and limited meaning when those words were written -- a coerced support for a government-designated religion. Justice Thomas' opinions often go back into history to show what the constitution's original meaning was.

In response to someone who wanted the Ten Commandments removed from a courthouse, Justice Thomas said: "He need not stop to read it or even look at it, let alone express support for it or adopt the Commandments as guides for his life." There was "no coercion" as there was when there was an establishment of religion.

JUSTICE THOMAS' DAY JOB: PART II

Thomas Sowell

Human Events

Anyone who takes the trouble to read the Supreme Court opinions of Justice Clarence Thomas will see a very different, and much more intellectually formidable, mind at work than what they might expect from reading media attempts to denigrate Justice Thomas.

A very convenient place to see excerpts from more than 300 of Clarence Thomas' judicial opinions is a new book titled "The Keeper of the Flame" by Henry Mark Holzer. These opinions provide some much needed clarification of the law, as well as clarifying media distortions of the justice's record.

One of the most gross distortions occurred early in Justice Thomas' career, when he refused to declare it a violation of the constitution when prison guards beat a handcuffed prisoner. He was called "the youngest and cruelest justice" in the media because he did not go along with others on the Supreme Court who considered that a violation of the 8th Amendment's ban on "cruel and unusual punishment."

What Justice Thomas understood, that the media either didn't understand or didn't want to understand, was that everything that is wrong, or even illegal, is not automatically a violation of the constitution.

It is not unconstitutional to assassinate the President of the United States. For most of our history, it was not even a federal crime.

That is why Lee Harvey Oswald was in the custody of the Dallas police, instead of the FBI. Oswald had violated no federal law when he shot President Kennedy.

Justice Thomas did not for one moment deny that the beaten prisoner had a right to take legal action against the guards who beat him. He even suggested that there were other laws, and perhaps other provisions of the constitution, that the prisoner could use, but that the 8th Amendment did not apply.

Why not? Because the word "punishment" in the constitution referred to "the penalty imposed for the commission of a crime," Justice Thomas pointed out. Therefore "judges or juries -- not jailers -- impose 'punishment.'"

Nobody sentenced this prisoner to be beaten. The guards took it upon themselves to do this illegal act -- for which they could be dealt with by civil or criminal laws, or both, without twisting the words of the 8th Amendment to mean something they never meant.

The legal principle involved went far beyond this case and even beyond criminal laws in general. Repeatedly, in many different contexts, Justice Thomas has driven home the point that the constitution is not a blank check authorizing judges to right whatever they think is wrong.

"More than any other member of the Court in modern times he has kept the constitutional faith," Professor Holzer says in the introduction to this book.

Contrary to what many say in the media, or even in academia, it is not a question of whether a judge is personally "conservative" or "liberal." The real question is whether he believes he is there to uphold the constitution or the constitution is there to authorize him to do whatever he wants to do.

Justice Thomas voted to allow marijuana to be dispensed under California's liberal laws, not because he necessarily agreed with those laws, but because the California legislature had the right under the constitution to pass that law for their state.

In this decision, he disagreed with some of his more liberal colleagues who voted to declare the California law unconstitutional. In another decision, he again disagreed with his colleagues, this time when they ruled that the Ku Klux Klan had a constitutional right to burn a cross near a black family's home.

To the Supreme Court majority, it was a question of "free speech." But Justice Thomas pointed out that the cross was burned solely for the purpose of intimidation and was not speech.

Those who think in terms of "liberal" and "conservative" judges would have to say that Justice Thomas was to the left of his colleagues on both these cases.

He was not, of course. In all these cases, he ruled on the basis of what the constitution actually said, not what clever judges could read into it. He kept the faith.

LEGAL SCHOLAR ANALYZES JUSTICE THOMAS'S OPINIONS

Dutch Martin

The Conservative Voice (and elsewhere)

Associate Supreme Court Justice Clarence Thomas is one of the most brilliant legal minds to ever sit on the federal bench. Just don’t tell that to most liberals in academia, the modern-day civil rights establishment, and the mainstream media who have spent over a decade and a half slandering the man for simply being a black conservative jurist who, when hearing cases before the Supreme Court, simply relies on the plain text of the United States Constitution and the original intent of the founding fathers who drafted it. Isn’t that what every judge appointed to the federal bench is supposed to do?

Tired of the vicious slander and smear tactics that have been leveled at Justice Thomas by the far left, retired law professor Henry Mark Holzer has penned The Supreme Court Opinions of Clarence Thomas, 1991-2006 (McFarland and Company, Inc., 2007). Picking up where his previous book, The Keeper of the Flame, left off, Professor Holzer analyzes the nearly 350 majority, concurring and dissenting opinions (all of which are listed in the appendix) that Justice Thomas has authored during his tenure on the High Court.

Professor Holzer details Justice Thomas’s jurisprudence regarding such constitutional issues as separation of powers, federalism, judicial review, and such Bill of Rights issues as abortion, affirmative action, the death penalty, and the alleged rights of prisoners. The author shows how, unlike some of his colleagues on the High Court, Justice Thomas begins by methodically studying the text of the U.S. Constitution and relevant statutes, as well as founding documents, historical sources, contemporaneous evidence like the Federalist papers, and principles of natural law. If necessary, Justice Thomas will even rely upon definition, syntax, history, context and reason. (Justice Thomas, after all, does hold a BA in English – with Honors! – from Massachusetts’ College of the Holy Cross, as well as a Yale law degree.)

Professor Holzer uses Justice Thomas’s own words to convey his deep fidelity to constitutional originalism, one that is deeply rooted in his respect for our nation’s founding documents and their drafters. This is the exact opposite of current and former High Court justices who, based on their belief in a “Living Constitution,” have dishonestly misinterpreted the U.S. Constitution and federal statutes in an effort to create out of thin air ersatz “rights” which have absolutely no constitutional basis whatsoever. (See Griswold v. Connecticut, Grutter v. Bollinger and Kelo v. City of New London among other egregious examples.) As Professor Holzer shows, Thomas, in his opinions, has no problem with taking the Court to task for its oftentimes incongruous and constitutionally groundless decisions.

When interpreting the Constitution and Federal Statues, Justice Thomas has written (emphasis added):

Thus, history provides an answer for the constitutional question posed by this case… The dissent identifies no evidence that the Framers intended to disable religious entities from participating on neutral terms in evenhanded government programs. [Rosenberger v. Rector and Visitors of the University of Virginia.]

In cases dealing with the scope of federal power:

The Court has encouraged the Federal Government to persist in its view that the [Tenth Amendment]’s Commerce Clause has virtually no limits. Until this Court replaces its Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state… powers under the guise of regulating commerce. [United States v. Lopez.]

No sitting justice on the Supreme Court has been a bigger champion of the First Amendment’s guarantee of free speech than Justice Thomas:

I do not see a philosophical or historical basis for asserting that “commercial” speech is of “lower value” than “noncommercial” speech. Indeed, some historical materials suggest to the contrary. [44 Liquormart v. Rhode Island.]

The author explains why he wrote this important book:

Too many members of the public have uncritically accepted the professional character assassination visited upon Justice Thomas by a certain segment of the professional and academic legal community. I cannot count the times that people who should have known better, simply upon hearing Clarence Thomas’s name, immediately responded with derogatory comments about his abilities as a justice – even though they have never read a single opinion of the hundreds Thomas has written… Attacks on Justice Thomas have been unconscionable distortions of an unambiguous and distinguished record. Simple justice requires they be rebutted because his opinions, often eloquent, reveal him as a thoughtful conservative who understands the role of a Supreme Court justice, the methodology of proper constitutional and statutory adjudication, and the appropriate resolution of the many issues that have come to the Court during his tenure.

That the far left, particularly the modern-day civil rights establishment, has chosen to personally attack Clarence Thomas instead of tying to better understand what makes him tick only underscores an important fact of modern-day liberalism: Liberals, by and large, are intellectually incapable of debating the merits of, or defending their positions on, important legal and public policy issues with those with whom they disagree. Instead, they attack, slander and malign those who dare to challenge the foundations of liberal orthodoxy.

As Professor Holzer shows, Thomas is a scholar, gentleman and intellectual heavyweight who is faithful to the U.S. Constitution, and thus deserves to sit on the Supreme Court of the United States. Naysayers attack him because, quite frankly, that is all they can do. They couldn’t hold a candle to Justice Thomas in an all-out, bare-knuckle debate on constitutional law. He would mop the floor with them. And they know it.

THE KEEPER OF THE FLAME: THE SUPREME COURT OPINIONS OF CLARENCE THOMAS (1991-2005)

Dutch Martin

Town Hall. com (and elsewhere)

Clarence Thomas is arguably the most controversial United States Supreme Court Associate Justice in modern times. This is not because of his jurisprudence, which strictly interprets the U.S. Constitution based on the original intent of its drafters; it’s not because of the meticulous way in which he relies on the Constitution’s text, context, history, and timeless principles of natural law in examining each Supreme Court case that comes before him. The controversy that surrounds him does not even stem from his gutsy willingness (his respect for stare decisis notwithstanding) to publicly criticize Supreme Court precedent, including the methodology used by the Warren Court in rendering its unanimous decision in Brown vs. Board of Education of Topeka, Kansas (1954).

Justice Thomas is controversial for mainly one reason: He is a black conservative jurist who sticks to his guns and stands by his convictions. As a result, the vicious character assassination leveled against him by the liberal elites and the civil rights establishment over the past 15 years has spurred another conservative lawyer into action. The result is a must-read: The Keeper of the Flame: The Supreme Court Opinions of Justice Clarence Thomas (1991-2005).

Author Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, examines all 327 opinions – majority, concurring and dissenting – written by Justice Thomas during his 14 complete terms on the High Court. Whereas Scott Douglas Gerber’s First Principles looks at Justice Thomas’s judicial philosophy during only his first five years on the Court and in only three areas (civil rights, civil liberties and federalism), Professor Holzer details Justice Thomas’s jurisprudence regarding a variety of constitutional issues over the past 14 years, such as separation of powers, judicial review, and such Bill of Rights issues as abortion, affirmative action, the death penalty, and the alleged rights of prisoners. As the author puts it, "Thomas’s words unequivocally reflect what he understands to be the appropriate role of a Supreme Court justice, his methodology for proper decision-making, and his position on fundamental constitutional questions…"

To see Professor Holzer’s point, let’s take a look at Justice Thomas’s written opinions in four high-profile cases in recent memory.

Stenberg v. Carhart (2000). In a 5-4 majority, the Supreme Court ruled Nebraska’s ban on "partial-birth" abortion unconstitutional because of its failure to incorporate an exemption for the health of the mother and its "undue burden" on abortion choice. In his dissent, Justice Thomas traced the history of the Supreme Court’s abortion jurisprudence up to Planned Parenthood v. Casey (1992), which he bluntly criticized as being "constructed out of whole cloth" with no constitutional basis whatsoever. After unabashedly describing what the gruesome procedure of "partial-birth" abortion entails (something no sitting federal judge has ever had the guts to do), Thomas examines the appropriate interpretation of the Nebraska statute, which he uses to crush the premise underlying the majority’s decision:

The majority and Justice O’Connor reject the plain language of the statutory definition, refuse to read that definition in light of the statutory reference to "partial birth abortion," and ignore the doctrine of constitutional avoidance. In doing so, they offer scant statutory analysis of their own.

Zelman v. Simmons-Harris (2002). This case involved the Ohio school voucher program, which opponents contended violated the First Amendment’s Establishment Clause. In his concurring opinion, Thomas masterfully demystifies the confusion surrounding the Establishment Clause of the First Amendment and the Due Process Clause of the Fourteenth.

[The school voucher program’s opponents] advocate using the Fourteenth Amendment to handcuff the State’s ability to experiment with education. But without education one can hardly exercise the civic, political, and personal freedoms conferred by the Fourteenth Amendment… [S]chool choice programs that involve religious schools appear unconstitutional only to those who would twist the Fourteenth Amendment against itself by expansively incorporating the Establishment Clause. Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in the greatest need.

Grutter v. Bollinger (2003). The question before the Court in this case was whether using race as a factor in student admissions by the University of Michigan Law School was unconstitutional. In a 5-4 majority decision, the Court decided that the school had a "compelling" interest in creating and maintaining a "diverse" student body and since that interest was "narrowly tailored," using race as an admissions criterion was constitutional. Quoting former-slave-turned-elder-statesman Frederick Douglass, Thomas brutally rebutted the majority’s "compelling interest" rationale in his dissent by showing how it violates the Fourteenth Amendment’s Equal Protection Clause, while in the process revealing the paternalistic thinking behind the majority’s ruling. Then, going for the jugular, Justice Thomas exposed affirmative action for what it really is:

The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch is not restricted to elite institutions… While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less "elite" law school for which they were better prepared. And the [elitists] will never address the real problems facing "underrepresented" minorities, instead continuing their social experiments on other people’s children.

Kelo v. City of New London (2005). Perhaps the most notoriously unpopular Supreme Court decision regarding eminent domain to come down in recent memory, a 5-4 majority voted that the city of New London, Connecticut could seize private residences and turn them over to private developers to generate jobs and tax revenue. Justice Thomas’s dissent, where he rightly looks to the Fifth Amendment, blows the majority’s horrifically flawed rationale (written by Justice Breyer) out of the water.

Defying this understanding, the Court replaces the Public Use Clause with "Public Purpose Clause"… (or perhaps the "Diverse and Always Evolving Needs of Society" Clause…), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational"… This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenues… is for a "public use." I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution… When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning [emphasis added].

As Professor Holzer observes, "I cannot count the times that people who should know better [i.e. legal scholars and other "learned" people] have, simply upon hearing Clarence Thomas’s name, immediately responded with derogatory comments about his abilities as a justice – even though they have never read a single opinion of the [327] Thomas has written." I challenge anyone to come away from reading The Keeper of the Flame and continue to view Justice Clarence Thomas as anything but the brilliant, articulate constitutional originalist that he is.

THE CONSERVATIVE’S CONSERVATIVE

Why Clarence Thomas Makes The New York Times See Red

By Patrick B. McGuigan

The Conservative Voice.com (and elsewhere)

In an editorial several weeks before the end of the 2006-07 Supreme Court term, The New York Times denounced the jurisprudence of Justice Clarence Thomas. That’s certainly nothing new.

But the good Grey Lady said Thomas has shown “an indifference to suffering” and has refused to push the High Court “in a humane direction.”

What Thomas has shown in his 17 years on the Court could be described many ways, but it cannot accurately be characterized as “indifference to suffering.”

Perhaps it’s a question of who’s doing the suffering. Thomas has written the most explicit descriptions of any justice concerning the notorious partial-birth abortion procedure the Court has considered repeatedly. He’s shown a fine, attentive eye for the effects of “liberal” judicial precedents on life in the real world of American inner cities.

What’s really behind the charge of “indifference” is Thomas’s clarity in rejecting preferred interpretive norms of The New York Times and its allies in American law schools and the judiciary.

In a broad analysis touching on all 350 opinions Clarence Thomas wrote his first 16 terms on the Court, Henry Mark Holzer, formerly of Brooklyn Law School and now working in California, captures all the essentials of what it is about Justice Thomas that makes The New York Times see red.

Professor Holzer has not written a personal biography of Justice Thomas, but an analysis of his jurisprudence. Holzer’s The Supreme Court Opinions of Clarence Thomas, 1991-2006 (McFarland, 2007) is the indispensable launching point for any serious examination of the judicial philosophy of an honorable man and a serious intellect.

Justice Thomas regularly articulates a kind of hostility (probably not too strong a word) toward anti- and extra-constitutional sources of legal precedent in American jurisprudence. He is the justice most consistently and methodically focused on the limits of government power, the constitutional role and function of the three branches of the federal government, and competing claims of state and federal jurisdiction.

In short, Clarence Thomas is the justice the most like James Madison, and the least like The New York Times editorial board.

The Times’ editorial writers grew even more frustrated with Thomas and the new conservative-leaning Court majority after the recent 2006-07 term, when justices limited the use of race in public school assignments, allowed school choice programs to move forward, restricted lawsuits targeting business decisions and, in general, incrementally limited the reach of federal judicial power.

Holzer's book deals with Thomas’s entire Supreme Court career before this most recent term, and it is a magnificent work of scholarship.

Sketches of some key Thomas decisions, from the context Holzer gives, follow.

In U.S. v. Lopez, Justice Thomas told colleagues the Supreme Court has encouraged the federal government to believe “that the Commerce Clause has virtually no limits.” He said that until precedents in the area are revisited, “we will continue to see Congress appropriating state ... powers under the guise of regulating commerce.”

In U.S. Term Limits v. Thornton, dealing with state powers to limit congressional terms, Thomas cited the plain text of the Tenth Amendment to defend his analysis limiting federal power, and pointed out the U.S. Constitution is largely neutral on the exercise of state powers by legislatures or the people: “[I]t is up to the various state constitutions to declare which powers the people of each state have delegated to their state government.”

In free speech cases, he is the most consistent justice when it comes to protection of core political speech, arguing it is “the lifeblood of a self-governing people.” In a major Federal Election Commission (FEC) case, Thomas expressed bafflement “that the Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend.”

Further, Justice Thomas is unapologetically dubious about claims that commercial speech has lesser value than noncommercial speech.

What binds these varied opinions is his concern for appropriate constitutional governance and limited government. Political labels like conservative, liberal, and libertarian are handy, but inadequate, when it comes to constitutional analysis, but they are the coins of the analytical realm.

For the sake of such shorthand, Clarence Thomas is what Holzer dubs him: the conservative’s conservative. When it comes to the Framers’ design for limited government and separated powers, Thomas does not think American jurists should make it up as they go along. He doesn’t believe smart judges should solve problems for us. He thinks Americans should customarily solve their own problems in appropriate political forums, and rarely in courts.

All this is not to say that Thomas is incapable of drawing upon an apt extra-judicial text to make a point.

For example, when Thomas dissented in the Kelo case, the Court’s infamous decision expanding the ability of local governments to seize private property, his constitutional arguments were powerful. He concluded that if “economic development” takings “are for a ‘public use’ any taking is, and the Court has erased the Public Use Clause from our Constitution.”

In “dicta” (commentary not necessarily related to his core legal conclusions), Thomas said the consequences of the decision “promise to be harmful.” He noted, without fear of contradiction, that historic “urban renewal” programs displaced minority and poor communities.

Such communities, Thomas observed, are “the least politically powerful.” He commented that those with disproportionate influence and power could use the precedent “to victimize the weak.” Thomas then cited a string of apt examples of negative impacts on “the weak,” noting the destruction of predominantly minority communities as a result of public works projects in the 1950s and 1960s.

As for pushing the Court “in a humane direction,” Justice Thomas has a notable libertarian sympathy that should, but probably never will, be credited by commentators like The New York Times.

In Virginia v. Black, Thomas reflected concern over a majority “speech” opinion. He asked them to consider the actual effect of Ku Klux Klan cross burning, saying erection of “such a cross is a political act, not a Christian one.” He argued, sensibly, that cross burning was action, not protected speech: “[J]ust as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.”

In Georgia v. McCollum, Thomas opposed colleagues when they eroded the ability of defense counsel to make peremptory strikes in jury selection, because that would weaken institutional protections for fair trials. He dissented in a case (Gonzales v. Raich) involving prosecution of those who possessed home-grown marijuana, because the case weakened what he viewed as a proper reading of the Commerce Clause and would allow Congress to “regulate virtually anything.”

Holzer’s book is well-organized. His analysis builds on constitutional case law flowing from the structure of the U.S. Constitution itself—and majority, concurring, and dissenting opinions from Justice Thomas on the same. You can read Holzer’s book, or as many of the cases as you wish, and decide for yourself.

Justice Thomas has built “an unambiguous and distinguished record,” Holzer argues. He is “a thoughtful conservative who understands the role of a Supreme Court justice, the methodology of proper constitutional and statutory adjudication, and the appropriate resolution of the many issues that have come to the Court during his tenure.”

“More than any other member of the Court in modern times Thomas has kept the constitutional faith,” Holzer writes. He deems Thomas “The Keeper of the Flame” for constitutionalism, a man who has shown “uncompromising fealty to those founding documents, to those who mid-wifed their birth, and to the political explosions to which they gave life.”

These are strong opinions, with which I happen to agree. They are opinions thoroughly documented in the historical record, and in lengthy direct quotes that form the bulk of Holzer’s book.

Agree with him or not, Justice Thomas deserves the kind of serious analysis and presentation Professor Holzer has given in his magisterial work. Thankfully, Clarence Thomas has shown himself a man of principle, a disciplined and dedicated exponent of judicial restraint and constructionism, the philosophy of “originalism” as old as the Republic.