Clarence Thomas may just save this nation
Posted by Richard on August 30, 2011
Instapundit linked to this Walter Russell Mead post the other day, and I almost missed it. It is not to be missed. In it, Meade writes about leftist Jeffrey Toobin's revisionist take on Clarence Thomas in The New Yorker (emphasis added):
… Toobin argues that the only Black man in public life that liberals could safely mock and despise may be on the point of bringing the Blue Empire down.
In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.
Writes Toobin:
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
…
There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. …
At most liberals have long seen Thomas as the Sancho Panza to Justice Antonin Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.
If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.
Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved in his lonely trek across the wastes of Mordor. And what he finds is that Thomas has been pioneering the techniques and the ideas that could not only lead to the court rejecting all or part of President Obama’s health legislation; the ideas and strategies Thomas has developed could conceivably topple the constitutionality of the post New Deal state.
It is, in the words of Shakespeare, "a consummation devoutly to be wished." I've been a huge admirer of Justice Thomas for many years, and for those of us who've read many of his opinions, this new-found respect for his intellect and arguments is not surprising, but long overdue. That it comes from Toobin, who is opposed to his core to everything for which Thomas stands, makes it that much more delightful.
My joy at reading Mead's post is tempered by the sober certainty that Toobin's essay will serve its no-doubt-intended purpose of motivating his fellow members of the ruling political class — from leftists like Toobin to so-called conservatives like David Brooks — to redouble their efforts to marginalize, discredit, and vilify Thomas. But anyone who's read his autobiography (and you really, really should) knows he won't be intimidated, dissuaded, or deterred.
David Bryant said
Taranto mentioned Toobin’s analysis on Wednesday, 31 August. I’ve actually waded through both the Walter Russell Mead article and Toobin’s piece in ”The New Yorker”.
Regardless of his political views, Toobin is a first-rate observer of the contemporary Supreme Court. His article is really very fair to Clarence and Ginni Thomas. I did find a few indications of Toobin’s underlying liberal / progressive bias, but they were few and far between. For instance, Toobin opines: “His views on the Eighth Amendment’s ban on cruel and unusual punishment remain so eccentric, even bizarre, that they have found little favor even on this more conservative Court.” Again, in discussing the right to keep and bear arms, Toobin says “Because of the ‘militia clause,’ many lower-court decisions had held that the law (Second Amendment) did not confer the right to bear arms on an individual” (as if the constitution ”confers” rights on people).
It’s clear enough that Toobin is an advocate for big government. But your statement that Toobin “is opposed to his core to everything for which Thomas stands” is a bit hyperbolic. I think Toobin is intellectually opposed to the doctrine of original intent, but not entirely unsympathetic to some of Thomas’ views on specific issues. For instance, in discussing Thomas and the history of the Second Amendment Toobin quotes the Justice: “The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence.” It strikes me that this particular Thomas quote is more likely to evoke sympathy among ”The New Yorker”’s audience than many other fragments from opinions Toobin might have chosen.
In short, I think Toobin is afraid of the doctrine of original intent, and somewhat sympathetic to Clarence Thomas, the man. Toobin got his law degree at Harvard, so he’s doubtless been indoctrinated with lies about a “living constitution”. But he’s no dummy, and he recognizes that “original intent” has legs. He is beginning to understand that Clarence Thomas is right about the philosophy of law that should underpin judicial decision making. And that, I think, really bugs him.