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08/04/2018

Linda Greenhouse on Clarence Thomas
Michael Ramsey

In the New York Times, Linda Greenhouse: Is Clarence Thomas the Supreme Court's Future?  From the introduction:

... I want to focus on Justice Clarence Thomas and specifically on the record he compiled during the past term. There is something almost discordant about including Justice Thomas in a discussion of “the future” because his highly personal and eccentric jurisprudence would take the court and the Constitution hurtling backward into the past.

That’s no great revelation. He has long insisted that the only legitimate way to interpret a constitutional provision is to give it the “public meaning” it supposedly had at the time it was written. So in 2011, for example, he dissented from a majority opinion written by Justice Antonin Scalia that struck down, on First Amendment grounds, a California law that made it a crime to sell a “violent” video game to a minor without parental permission. “The founding generation,” Justice Thomas wrote in dissent, “would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minor’s parents.”

While Justice Thomas’s unyielding view of originalism has been evident since he took his seat on the court 27 years ago, his output in the most recent term was little short of astonishing. In a term that produced only 59 signed opinions, I counted six important and long-enduring precedents that Justice Thomas would have wiped off the books as inconsistent with the original understanding.

(She says that like it's a bad thing.)  And from the conclusion: 

A month ago, ThinkProgress published an essay by Ian Millhiser with the title “Clarence Thomas Is the Most Important Legal Thinker in America.” [Ed.: Sorry, missed that one.]  I did a double take. How could the estimable Mr. Millhiser sign his name to such an exaggerated claim? But his argument was not that Justice Thomas, who recently turned 70, is winning victories today, but that he is paving the way for victories down the road — and perhaps not all that far down the road. Observing that 20 percent of Trump-appointed appeals court judges are Justice Thomas’s former law clerks, Mr. Millhiser wrote, “Thomas lost the war for the present, but he is the future of legal conservatism.”