In the Introduction, Paoletta rightly calls Thomas an American hero and our greatest Supreme Court Justice, and these pages detail the experience and thinking that formed so remarkable a judge. Remarkable, but also exemplary—both because Thomas believes that the Constitution’s central guarantee of liberty depends on the citizenry’s personal qualities of self-reliance and self-restraint, traits for which he is a poster child, and also because his own rise from poverty in the segregated Deep South to the High Bench illustrates the opportunity for self-development that liberty makes possible for Americans, both black and white. In particular, as he emphasizes in this volume, his story suggests what a different fate black America might have had if bad cultural developments and bad social policy, abetted by the Court, had not proved destructive to so many and led them to self-sabotage. Continue reading
Will the Real Justice Gorsuch Please Stand Up?
Has a great judge been body-snatched?
June 21, 2020
The logic of Justice Neil Gorsuch’s mid-June majority opinion for the Supreme Court in Bostock v. Clayton County, outlawing employment discrimination against homosexuals and transgendered individuals, is so at odds with his previous jurisprudence and his character that the editors of the Wall Street Journal wonder if he’s been body-snatched by aliens. Or perhaps the noxious emanations and penumbras of Warren Court activism have seeped up from the Supreme Court’s crypt and addled what was once the most judicious of judges. Before hazarding a tentative diagnosis, though, let’s recall who the justice was before this seizure occurred. Continue reading
The Court Moves Right
But judges have a lot of unlearning to do.
Less than a decade ago, surveying the shambles that half a century’s judicial activism and judicial abdication had made of the Framers’ original Constitution, such insightful commentators as Philip Howard and Mark Levin feared that only a new constitutional convention could fix the mess. Not a full replay of the 1787 drama, but something almost as drastic—the amending convention that the Constitution’s Article V outlines. Its terms allow two-thirds of state legislatures to name a council empowered to frame a balanced-budget or income-tax-limit amendment, say, or—most important—to repeal unconstitutional laws, regulations, and Supreme Court decisions. Three-quarters of the legislatures would then need to ratify such measures.
Now, though, the advent of Justices Neil Gorsuch and Brett Kavanaugh has reshaped the Supreme Court enough to stop such despondent talk. While the decisions announced at the end of the Court’s term in June, marking the first year with both new justices on the bench, don’t amount to a stampede toward the Right, they display a wholesome focus on what the Constitution and statutes actually say. The Nine are “redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation that judges have employed for centuries to elucidate the law’s original public meaning,” Gorsuch explained in a June opinion. “Today, it is even said that we judges are, to one degree or another, ‘all textualists now.’ ” And that’s already a quiet revolution. Continue reading
The Constitution, not precedent, is the law of the land.
June 19, 2019
One of the most striking aspects of Monday’s Supreme Court decision in Gamble v. United States was Clarence Thomas’s eloquent summary of the core precept of his judicial philosophy: that stare decisis—the venerable doctrine that courts should respect precedent—deserves but a minor place in Supreme Court jurisprudence. His 17-page concurrence in a case concerning double jeopardy, really a stand-alone essay, emphasizes that, in America’s system of government, the “Constitution, federal statutes, and treaties are the law.” That’s why justices and other governmental officers take an oath to “preserve, protect, and defend the Constitution of the United States”—not to safeguard judicial precedents. “That the Constitution outranks other sources of law is inherent in its nature,” he writes. The job of a Supreme Court justice, therefore, “is modest: We interpret and apply written law to the facts of particular cases.” Continue reading
Manhattan Institute Book Forum | May 8 2019, New York City