Original Thomas, Conventional Souter:

What Kind of Justice Should the Next President Pick?


John O. McGinnis
Policy Review
Fall 1995, Number 74

The 1994 term of the Supreme Court cast into stark relief the performances of Justices Clarence Thomas and David Souter. Justice Thomas emerged as the boldest member of the Court in half a century -- a jurist committed to seeking the original meaning of the Constitution in lengthy and learned opinions that survey the vast scope of American constitutional history. On the other hand, Justice Souter, while continuing his move to the Court's liberal wing, tended to write jejune opinions seemingly intent on avoiding the central issues of the case. It is as if Thomas and Souter keep alive in the public sphere the paradoxical qualities of the president who appointed them both. Thomas represents the bold and fearless George Bush who prosecuted the Gulf War and stood by Thomas in his contentious confirmation hearings, while Souter represents the reticent George Bush who was inattentive to conservative principles in many areas of domestic policy.

Given the excellent prospects in 1996 for a new president inclined to appoint conservative justices, it is appropriate to analyze the differences between these justices to aid the new president in choosing nominees in the mold of Thomas rather than Souter. I then propose a few criteria for choosing the next nominee that will maximize the chances of selecting an outstanding justice who will help ensure principled constitutional governance into the next century.

Liberal and conservative commentators alike agree on one proposition about the most recent Supreme Court term: Thomas became a force to be reckoned with. Tony Mauro, a liberal Court watcher, wrote of Thomas's "bold and searching" opinions. Burt Neuborne, a professor at New York University Law School and the former director of the ACLU, was struck by Justice Thomas's "vigorous tone" in his many "interesting and important opinions." James Kilpatrick wrote of his "masterly" work. George Will gave what may be a conservative's highest accolade for a judge: Thomas's opinions, he wrote, were "Borkean."

Indeed, the most striking characteristic of Thomas's opinions was one he shares with Judge Robert Bork -- a willingness to go back to first principles to uncover the meaning of the Constitution. In case after case where the original meaning of the Constitution was put in issue by the litigants or other justices, such as those involving term limits, the extent of Congress's authority under the Commerce Clause, and the protection afforded anonymous pamphlets under the First Amendment, Thomas wrote magisterial opinions that investigated the original understanding of the Constitution in detail. To be sure, not all of his opinions investigated all possible originalist angles of a case. But this is only to be expected, given the way issues are framed on the Court. Thomas is not a law professor, completely at liberty to approach every case without reference to the framework in which his colleagues or the litigants are operating. Nevertheless, his opinions undoubtedly represent the most impressive set of originalist opinions ever written by a Supreme Court justice within a single term.

Thomas's opinion in U.S. Term Limits v. Thornton was emblematic of his approach. The issue in the case was whether the states could preclude individuals who had served a certain number of terms as a senator or member of the House of Representatives from again appearing on the ballot for that office. The Constitution sets out certain qualifications for both representatives and senators. For instance, as to members of the House of Representatives, the Constitution provides, "No Person shall be a Representative who shall not have attained to the Age of twenty five Years and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

The analysis in the majority opinion in Thornton rested on the proposition that these qualifications were exclusive. It held that term limits were unconstitutional because state law could not add qualifications relating to the number of terms a candidate had previously served. The majority asserted that its view was supported by the precedent of Powell v. McCormick (1969), where the Court held that Congress could not exclude Adam Clayton Powell on the basis of criteria not mentioned in the qualifications clause. The majority also argued that the structure of the Constitution as a whole reflected the sovereignty of a national people, and additional qualifications would detract from national sovereignty.

Justice Thomas shredded these arguments. First, he showed as a matter of first principle that the Constitution was adopted by the people of each state and not by the people of the nation as a whole. Thus, the people of the states are prohibited from acting only if they impose such a prohibition on themselves in the Constitution or ceded such power exclusively to the federal government. This principle of residual state sovereignty is encapsulated in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people."

Thomas showed that the Tenth Amendment was expressly designed to rebut inferences like the one the majority attempted to draw from the qualifications clause. Because the Constitution simply provides a set of minimal qualifications for representatives and senators and nowhere prohibits the states from adding additional qualifications, the Tenth Amendment shows that the states are free to make additions. As Thomas wrote, "All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each state."

Once it is established that the federal government is a government of enumerated powers while the state governments are governments of residual powers, the term-limits case is easily decided. In particular, it is clear that the precedent in Powell v. McCormick is no bar to state term limits. Congress simply lacks an enumerated power to impose additional qualifications, whereas the states reserve the power to add additional qualifications because nowhere in the Constitution did they surrender that power.

The opinion in Thornton was not Thomas's only originalist tour de force of the term. In United States v. Lopez, he wrote a concurrence that was the most interesting judicial explication of the Commerce Clause in more than half a century. In Lopez, the Court invalidated (as beyond Congress's power under the Commerce Clause) a federal statute that prohibited the possession of a gun within 500 feet of a school. Justice William Rehnquist's majority opinion essentially reasoned that education was not commerce and therefore held inapplicable the long line of cases in which the Court has interpreted the Commerce Clause to permit Congress to regulate any activity which has "substantial effects" on interstate commerce.

Thomas's opinion was more sweeping. He called for a reconsideration of the "substantial effects on interstate commerce" test because it was inconsistent with the original meaning of the Commerce Clause. First, Thomas showed that the modern test used a meaning of "commerce" that encompassed all economic activity, whereas the meaning of "commerce" at the time of the Framing was limited to trading and exchange, as distinct from other productive activities such as manufacturing and farming. Second, Thomas observed that permitting Congress to regulate all activities "affecting" interstate commerce deprives many of the words contained in the clause of independent force. Moreover, most of the rest of the authorities granted to Congress under Article I would also be superfluous under the "affecting commerce" test. Why give Congress particular authority to regulate bankruptcy, since insolvency self-evidently affects economic activity among the states?

Thomas did not settle on a precise test for Congress's authority over interstate commerce, explicitly recognizing the difficulty of recovering the original meaning of the Commerce Clause in light of decades of nonoriginalist precedent. Describing the exact contours of an improved jurisprudence concerning the Commerce Clause was appropriately left to a future opinion, where that test could command a majority of the Court.

Some commentators have labeled as radical Thomas's opinions in Lopez and other cases this term. But these opinions are radical only in the sense of going back to the original roots of the Constitution. They are, in fact, an attempt to begin to erase the decades of radicalism during the Roosevelt and Warren Courts, which transformed the Constitution into a hollow likeness of its former self. The Constitution fashioned by those courts reflected the enthusiasm of the New Deal and the Great Society for a powerful, centralized government to act as the engine of social democracy and collectivist reforms. Accordingly, the pillars of the original Constitution, such as federalism, the separation of powers, and property rights, that seemed to be roadblocks to social democracy were weakened and, in some cases, eviscerated. Now that centralized and collectivist solutions to social problems are increasingly seen as a snare and a delusion, it is not surprising that the Constitution of the Framers -- designed to sustain only the limited, centralized government necessary to maximize the protection of individual rights -- is beginning to reappear. Thomas has become one of the leading restorers of the original canvas, stripping away in opinion after opinion the obscuring varnish that has accumulated over the last 50 years.

Thomas also wrote a profoundly originalist concurrence in McIntyre v. Ohio Elections Commission. At issue was whether Ohio could restrict anonymous election pamphlets. The majority, in an opinion by Justice John Paul Stevens (over a dissent by Justice Antonin Scalia), invalidated such restrictions because of the value of anonymous pamphleteering to political discourse and because of the long tradition of such pamphleteering. Refusing to join the majority opinion, Thomas wrote a concurrence in which he analyzed whether the freedom of speech as understood at the time of the Framing protected the right of anonymous political speech. Reviewing an enormous amount of political discourse, he demonstrated that the Framers themselves relied on anonymity to "a remarkable extent" in their advocacy of the Constitution with only one or two pieces signed in their original name. Moreover, he unearthed an important controversy about anonymous political speech between the Federalists and the Anti-Federalists in Philadelphia in 1787. There the Federalists backed down from an attempt to prohibit anonymous speech in the face of claims that such a prohibition "reversed the important doctrine of freedom of the press." Given the pervasiveness of anonymous political speech and its triumph over legal restrictions in the years immediately preceding the adoption of the First Amendment, Thomas concluded that anonymous pamphleteering was protected by the concept of freedom of speech.

Nor was McIntyre the only case in which Justice Thomas deployed originalism to protect civil liberties. In Wilson v. Arkansas, Justice Thomas held for a unanimous Court that the Fourth Amendment reflected the "knock and announce principle" at common law at the time of the Framing. The Fourth Amendment therefore permitted unannounced searches only in circumstances where that venerable principle permitted them -- instances when there were strong countervailing exigencies or considerations.

McIntyre and Wilson discredit the familiar claim of liberal commentators that Thomas is hostile to civil liberties. He is fearless in sustaining the liberties that the Constitution protects. Indeed, we can look forward to his sharp analysis as the Court revisits liberties such as those contained in the Contract Clause that were conveniently discarded by the "civil libertarians" of the post-New Deal era.

Thomas was also a strong voice on matters of civil rights. His opinions in that area were less elaborate than his originalist analyses of the Constitution, but no less forceful. In the most important civil-rights case this term, Adarand v. Pena, in which the Court declared that strict scrutiny must apply to racial preferences in federal contracting programs, Thomas inveighed against the dissent's attempt to create "a paternalism exception to the equal protection clause." He also showed an exact understanding of law's essential possibilities and limitations: "Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law."

In Missouri v. Jenkins, Thomas also filed an important concurrence supporting the Court's holding. The decision prevented a lower court from continuing to run Missouri's schools decades after segregation had ended partly on the justification that schools still were not racially mixed. "It never ceases to amaze me," wrote Justice Thomas, "that courts are so willing to assume that anything predominantly black is inferior." Consistent with the theme of his Adarand concurrence, Thomas observed there is nothing constitutionally wrong with a predominantly black institution, unless it is the law that forces an institution to be composed of a particular race.

Although his voting record was among the most liberal of any justice, even liberal commentators did not single out Souter's opinions for praise. Indeed, the mark of Souter's work last term was his attempt to use process to flee substance. "The Court's process of orderly adjudication has broken down in this case," began his Missouri v. Jenkins dissent, and his opinion soon degenerated into a set of querulous complaints about the procedural posture of the case -- complaints easily refuted by the majority. In Adarand, his opinion rested largely on the proposition that the Court must uphold the program of racial set-asides because of the stare decisis effect of Fullilove v. Klutznick (1980) in which a fragmented Court upheld a different set of racial set-asides more than a decade ago, and Metro Broadcasting, Inc. v. FCC (1990), in which the Court upheld racial preferences in the peculiar setting of broadcasting.

Adarand illustrated the failings of Souter's performance: Far from being a critical thinker, he is a prisoner of the school of legal process jurisprudence that reigned at Harvard Law School during his time as a student there. Legal process jurisprudence arose in response to legal realism, which claimed that judges made decisions on political or other personal grounds. One important strand of process jurisprudence maintained that judges could avoid unprincipled decisionmaking by focusing on the distinctive aspects of legal procedure such as stare decisis. This school no longer holds sway even among academics, in part because it is widely recognized that procedural doctrines are as subject to manipulation at least as much as the substantive doctrines of law.

In any event, Souter's performance in Adarand is an unquestioning pupil's parody of his master's teachings. There was no majority opinion in Fullilove, thus whatever the importance of honoring stare decisis and preserving long settled principles, it was preposterous to put Fullilove in this category. Moreover, Metro Broadcasting's lenient standard of review for preferences in broadcasting conflicted with much of the rest of the Court's equal-protection jurisprudence. Accordingly, the issue of racial preferences in federal contracting could not fairly be understood as governed by binding precedent. It will certainly be interesting to watch whether Souter in the future gives stare decisis effect to the majority opinions from which he is now dissenting.

Rosenberger v. Rector & Visitors of the University of Virginia is the case that perhaps best shows the chasm between Souter and Thomas. In that case, the majority opinion, which Justice Kennedy wrote and Thomas joined, held that the University of Virginia could not refuse to fund the printing costs of a student newspaper because of its Christian editorial content so long as it was funding the printing costs of other student publications.

The Court held that the university had discriminated against religiously inspired newspapers relative to those with a secular editorial policy, thereby engaging in viewpoint discrimination forbidden by the Free Speech Clause of the First Amendment. Moreover, the Court held that the university's payments to the printer who published the religious newspaper did not violate the Establishment Clause, because the payments were part of program that had a secular purpose -- fostering student learning and creativity -- and that were available to all publications, regardless of their particular religious viewpoint or lack thereof.

Souter dissented. He argued that there was no free-speech violation because there was no viewpoint discrimination: The university's decision to prohibit the reimbursement of printer expenses for magazines with a religious editorial was no different from the decision to prohibit the reimbursement of all magazines except those devoted to cooking. Souter also argued that reimbursement would violate the Establishment Clause because the state was subsidizing the propagation of a religious point of view. In support of his position, he relied on Madison's Memorial and Remonstrance on Religious Observance in which Madison assailed a legislative proposal that would have taxed citizens of Virginia in order to support churches.

Like his Adarand opinion, Souter's Rosenberger opinion faithfully represents the view of the liberal establishment that educated him. Under this view, religion is something that can be practiced privately and dissected publicly at a university in history, anthropology, and psychology classes. Religion, however, must be assiduously kept from the public square, particularly when that square is an educational institution of any kind.

This principle of separation between religion and state has been sold as a way of preventing the government from favoring religion. In reality, it has a way of uniquely disfavoring religious viewpoints and maximizing the influence of the predominantly liberal secular ideas of institutions of public education. Under the conventional liberal view of the Establishment Clause, the Constitution would forbid a public university from having a program of encouraging student writing and debate that refunds the printing costs of a religious magazine even if it simultaneously funds magazines celebrating the philosophies of John Dewey, Karl Marx, and Donald Duck.

In his concurrence, Thomas first stripped this view of the patina of historical legitimacy Souter tried to give it. Thomas pointed out that the program Madison attacked in his Remonstrance provided special benefits to religious institutions alone: Madison complained that this forced civil society to take "cognizance" of religion. A funding program for student journalism and debate that includes religiously inspired magazines does not give special benefits to religion, but simply allows religious magazines to enjoy the same benefits as other magazines. Only a program that discriminates against religious magazines -- the very kind of program that the University of Virginia was running—takes "cognizance" of religion.

Moreover, Thomas suggests that the conventional Establishment Clause principles are incoherent on their own terms. Tax exemptions have been provided to religious and secular institutions alike as charitable recipients for 200 years because support for charity has a secular purpose. Yet these are functionally and economically equivalent to direct aid given to religious institutions that are contributing to some secularly defined program, like encouraging intellectual debate or chastity among the young. Thomas questions how direct aid to institutions could be different from tax exemptions if both are given as part of general program that has a secular purpose and is open to secular institutions. He thereby forces us to ask: Is a deep legal principle underlying this distinction? Or is it the political calculation that, while the curtailment of direct aid might provoke grumbles from the people, the termination of tax exemptions would lead to a wholesale constitutional amendment of the Establishment Clause that the modern Court has created.

The dramatic difference in performances of Thomas and Souter suggests a few essential considerations which should guide the next conservative president in his choice of a nominee:

  1. The next nominee should show an established commitment to the conservative legal movement; he should, in other words, have "reputational capital" invested in conservative legal thought. The difference between Thomas's and Souter's relation to conservative thought before they were appointed almost certainly bears on the very different paths they have followed on the Court. Thomas had not only met and conversed with the members of the conservative legal movement, but was himself one of the leaders of the movement in the area of civil rights. Thus, Thomas came to the Court inclined to articulate principles that he had been on record as supporting and, in one area, had formulated himself.

    Souter, by contrast, had never made any contribution to conservative legal thought or been part of the conservative legal movement. Although he had been the attorney general under a conservative governor in New Hampshire, his legal thinking had never been systematically exposed to originalism and other conservative jurisprudential movements that gained renewed strength in the 1980s. Without any reputational capital invested in conservative legal thought, it is not surprising that Souter fell back on the jurisprudence of his legal educators and the current elite legal establishment, which is substantially to the left of the country as a whole.

    Another important consequence of their different associations may be a difference in psychological commitment to conservatism. In participating in the fledgling conservative movement in law, Thomas cemented many friendships through what St. Augustine called "the warmth of kindred studies." Such friendships naturally sustain the intellectual outlook previously adopted in the face of predictable pressures of the Washington establishment. Moreover, the network of friendships from the conservative movement has very practical consequences as well. Thomas has largely hired clerks who are associated with the conservative legal movement. After his first few years, Souter has hired predominantly liberal clerks, some strategically recommended by the overwhelming liberal community of law professors at leading law schools.

  2. Although the next nominee emphatically does not have to be a Washington insider, he should have been tested in Washington at some point in his career. Thomas's outlook was forged in the heat of one of the most contentious national issues of our time -- civil rights. He had already taken positions for which he had paid a price in public attacks on his views and his character. Souter, on the other hand, had spent the major part of his career on relatively less consequential issues far from Washington and far from the influence of the predominantly liberal national media and opinionmakers. While some of his opinions on the New Hampshire Supreme Court were vaguely conservative, they were never important enough to be challenged by the liberal legal establishment.

    Thomas thus was tested in his beliefs in a way Souter could not have been. Once both were put in the national spotlight of the Supreme Court, it was far more certain that Thomas would be steadfast in adhering to conservative views despite an initial reception that was certain to be hostile. A justice who has not been tested, like Souter (or Justice Lewis Powell), is much more likely to be blown from side to side by the very powerful political gusts at the storm center of the Court.

    There are other considerations worth taking into account in choosing a justice, although they are admittedly less important than the first two:

  3. The justice should be persuasive with his colleagues. Although the ability of any justice, no matter how incisive and collegial, to make a difference in the way his colleague votes is limited, in a few close cases over a justice's career he or she may hope to sway others. The qualities required for persuasion are keen analytical ability (to spot possible coherent lines of analysis that a colleague might join), a persuasive pen, and a friendly, extroverted nature (to make the justice's colleagues want to be in the same corner). On the evidence of this term, Thomas has all these qualities.

  4. The justice should have some understanding of economic analysis. Although this essay has addressed only constitutional law, so much of the best understanding of statutory law, both public and private, turns on economic concepts such as efficiency, consumer welfare, and cost-benefit analysis. A justice literate in economics has a substantial advantage in interpreting such statutes. Economic literacy does not necessarily entail that the nominee be a law and economics professor or have an academic degree in economics, but simply that the nominee have been exposed to systematic economic analysis during his or her career. Thomas, for instance, had taken an intensive course in economics for judges when he was appointed to the District of Columbia Circuit.

With the benefit of such considerations and the very large supply of lawyers and jurists in the conservative legal movement who would make excellent nominees, I am confident that the next president can nominate individuals who will join the pantheon of truly great Supreme Court justices: like Chief Justice John Marshall, Justice George Sutherland, Justice Scalia, and, if he continues to meet the standard he set last term, Justice Clarence Thomas himself.

JOHN O. MCGINNIS is a professor at the Benjamin N. Cardozo School of Law. He was a deputy assistant attorney general in the Office of Legal Counsel at the Justice Department under presidents Reagan and Bush.


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