Tuesday, July 3, 2018

Clarence Thomas is the most important legal thinker in America – ThinkProgress

Clarence Thomas is the most important legal thinker in America – ThinkProgress
by Ian Millhiser

***There is a commonly held view that Thomas is an intellectual lightweight. Radical and far-too-quiet on the bench. Idiosyncratic and lacking in influence. A fairly persistent take on Thomas’ career holds that he’s lived in the shadow of Justice Antonin Scalia, and his views were, at most, an exaggerated version of Scalia’s originalism.

This view of Thomas is wrong.

It is true that Thomas had little influence on the men and women he’s served with for years. No other member of the Court joined his opinions suggesting that federal child labor laws and the ban on whites-only lunch counters are unconstitutional — though there’s a very real risk that Neil Gorsuch will be the first. No other justice agrees with Thomas that the First Amendment does not apply to high school students.

But if you’re asking how effectively Thomas helped sway Chief Justice John Roberts or Justice Anthony Kennedy to his own views, you are asking the wrong question. In a series of opinions joined by no other justice, Thomas waged a quiet war of ideas against twentieth century liberalism — and he won the hearts of a legion of conservative law students. Many of those former students are now old enough to be judges.

As of this writing, fully 20 percent of the judges Donald Trump appointed to the federal appellate bench are former Thomas clerks. Thomas lost the war for the present, but he is the future of legal conservatism. And he may soon be America’s future.
Unmentionable ideas

To understand just how much Thomas shaped America’s legal debates, it’s helpful to turn the clock back to 1991 — the year Thomas joined the Supreme Court — and then to turn it back a little further, to an age when Thomas’ views were ascendant.


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