The Justice’s People

From the start, critics of the Supreme Court have denounced it as the political tool of powerful elites. Especially its elite critics.

When the Senate Judiciary Committee convened in 1991 for hearings on Clarence Thomas’s Supreme Court nomination, for example, Democratic senator Ted Kennedy complained that the Court was taking an elitist turn. “Many of us are concerned about the direction the Supreme Court has taken in recent years,” he said. “It has increasingly abandoned its role as the guardian of the powerless in our society.”

Days later, another witness took the point further, attacking not just the Court but also the nominee. According to Professor Charles Lawrence, Thomas had striven “to serve those who are most powerful in this society, and he has served them well.” The Stanford law professor argued that the Court needed a “voice for those who too often go unheard”—not, he insisted, Clarence Thomas.

But Thomas was uniquely well suited to hear the powerless. Born dirt poor in Pin Point, Georgia, and raised by a grandfather who taught him how to carry a hard life’s heavy burdens, Thomas later studied at Yale Law and served in high levels of government. He knew both power and poverty.

After Sen. Kennedy, Prof. Lawrence, and others failed to thwart his path to the Court, Chief Justice William Rehnquist gave Thomas the judicial oath: to “administer justice without respect to person, and do equal right to the poor and to the rich.” As Thomas later recalled in his memoir, My Grandfather’s Son, the words left him “[s]truggling to control my surging emotions … thinking as I did so of how Daddy and Aunt Tina had raised me to fulfill it.”

Yet Justice Thomas would be dogged relentlessly by accusations that his judgments and jurisprudence punished the poor and weak. A year into his service on the Court, the New York Times called him “The Youngest, Cruelest Justice” and condemned him for purportedly turning his back on society’s most vulnerable. And this year, when the Supreme Court ruled that race-based university admissions are unlawful, one prominent pundit tweeted a photograph of Thomas, denouncing “the face of a man who climbed the ladder of affirmative action to his present perch of power only to help destroy the very ladder on which he ascended.”

After decades of such attacks, Judge Amul Thapar responds in Thomas’s defense. “By cherry-picking his opinions or misrepresenting them,” Thapar writes, “Justice Thomas’s critics claim that his originalism favors the rich over the poor, the strong over the weak, and corporations over consumers.” Thapar shows that many of Thomas’s opinions actually cut in the other direction. He recounts 12 of those cases, and the people at the heart of them, in The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him.

Some of these cases are already famous, their people the subjects of entire books. The best example is Susette Kelo, who struggled to defend her modest home against the combined powers of local politicians and Pfizer, who sought to force the sale of her house for the sake of a new corporate campus that would supposedly boost the local economy and tax revenues. When the Supreme Court upheld their taking of private property as constitutional, Justice Thomas dissented emphatically: “Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not,” due to the Court’s “almost complete deference it grants to legislatures as to what satisfies it.”

Less famous are other cases, such as City of Chicago v. Morales (1999), where the Court ruled that Chicago’s anti-gang loitering law was unconstitutionally vague. Here, too, Justice Thomas dissented, highlighting the people who would suffer from the Court’s ruling—and his colleagues’ comfortable distance from the brutal reality of the situation. “Today the Court focuses extensively on the ‘rights’ of gang members and their companions,” he wrote. “It can safely do so—the people who will have to live with the consequences of today’s opinion do not live in our neighborhood. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs.”

The book’s title and cover photo notwithstanding, each chapter centers not on Justice Thomas’s opinions, but on the personal stories underlying each case. In each chapter, Thomas’s opinion—10 dissents and 2 concurrences, never a majority opinion for the Court—punctuates a story of common people and communities. The book might have been called The Justice’s People.

Judge Thapar’s selections make clear that empathy does not point consistently in one jurisprudential or political direction. In Morales, for example, Thomas gave voice to the unheard communities seeking relief from gang violence. The very next chapter focuses on McDonald v. City of Chicago (2010), where the Court struck down Chicago’s handgun laws as violating the Constitution’s right to keep and bear arms. Thomas concurred, highlighting the 14th Amendment’s original purpose of ensuring newly freed blacks could defend themselves and their rights against hostile whites, and connecting it to the importance of the right to keep and bear arms today. Thapar titles his McDonald chapter “The Sharecropper’s Son,” and the Morales chapter “Streets of Terror”; a progressive author might apply the “Streets of Terror” label to the gun case instead.

Thapar, who serves on the U.S. Court of Appeals for the Sixth Circuit, concludes with a chapter telling the personal stories of a lawyer and client—and Justice Thomas’s reason for ruling against them. In Virginia v. Black (2003), David Baugh, a black man, was counsel for a KKK cross-burner. He claimed cross-burning was a form of speech protected by the First Amendment. The Court ultimately ruled in his favor, but Thomas again disagreed, devoting the first part of his dissent to those who would suffer under the Court’s decision. Recounting some of history’s countless examples, he reminded the Court—and its audience, the American people—that “in our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence.”

In the end, empathy itself is not the final criterion of any case, and Thapar isn’t arguing otherwise. Far from it. Thapar writes at the outset that “the judge’s role is to determine what the words [of the Constitution and laws] meant when they were enacted and to apply them to the cases in front of him or her. Nothing more, nothing less.” Nor does originalism always point toward either individual liberty or democracy. “Sometimes, originalism means vindicating the rights that are in the Constitution. … Sometimes, it means handing control over the law back to America’s elected representatives.”

But The People’s Justice shows that constitutional originalism can level the scales—the neutral and independent rule of law vindicates the weak against the strong much more than the Roberts Court’s critics would acknowledge. “You may be surprised by how often originalism counsels a result for the little guy,” Thapar writes. Three decades ago, Justice Scalia’s seminal defense of constitutional originalism warned that the left’s “living Constitution” does not always expand liberty, and often contracts it. Today Thapar offers a similar message. And looking beyond Thomas’s opinions, one sees such themes in the judicial opinions of Justice Neil Gorsuch, whose strongest criticisms of the modern administrative state have often come in cases involving vulnerable immigrants suffering under arbitrary and unsteady regulatory regimes. Gorsuch also is particularly attuned to the plights of Native American tribes.

But one must keep in mind, again, that the justices’ oath is to “administer justice without respect to person, and do equal right to the poor and to the rich” alike. “Sometimes that will mean that the less sympathetic party triumphs,” Thapar admits.

Many readers will pick up The People’s Justice expecting mostly stories of Justice Thomas’s humble origins, or a comprehensive analysis of his jurisprudence. That isn’t this book. For Thomas’s own story, none have put it better than Thomas himself, in My Grandfather’s Son. For his jurisprudence, the best book so far is Ralph Rossum’s Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (2014).

The most prominent example of Thomas’s judicial empathy acting hand-in-hand with his staunch originalism is the opinion he published shortly after Thapar’s book arrived. In the Harvard and North Carolina cases, Thomas’s account of the 14th Amendment’s protection of civil rights through its prohibition of race-based line-drawing focuses on those who quietly suffered under affirmative action. To Justice Ketanji Brown Jackson’s arguments in favor of racial affirmative action, Thomas replied: “How, for example, would Justice Jackson explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation.”

The last line echoed an essay Thomas wrote in 1988, before his appointment to the Court. Writing of race-based affirmative action while chair of the Equal Employment Opportunity Commission, he emphasized both the harms it did even to its nominal beneficiaries, and the misguided intentions of the elites who administered it. Then-chairman Thomas warned that “[n]o one in this country should be made the fall guy for some other person’s easy way of solving problems.”

Surely a future edition of The People’s Justice will include Thomas’s concurrence in the affirmative action cases. It epitomizes his jurisprudence, and the principles and character that underlie it.