The Case for Clarence
Thomas, Chief Justice of the Supreme Court
by Jeffrey Hicks
Chief Justice William Rehnquist's
current battle with cancer is sending shock waves throughout
the legal community. With the Chief Justice forgoing active participation
in the Court's activities, it is speculated that the 80-year-old
may be ready to retire.
Republican gains in November
now create the real possibility of something few would have seriously
considered previously: That Justice Clarence Thomas could become
the next Chief Justice of the U.S. Supreme Court.
Both President Bush's reelection
and the four-seat increase in the Senate's Republican majority
make Justice Thomas' promotion a realistic prospect. Court-watchers
no longer dismiss him as a political "third rail."
In fact, it is acknowledged that promoting him could prove a
sagacious move for several key reasons.
Over the years, Justice Thomas'
jurisprudence has evolved into what is arguably the Court's most
conservative. He is considered a champion of two conservative
judicial doctrines - originalism and strict constructionism.
Originalist doctrine seeks
to discern the original intent of the Constitution's framers.
It is antithetical to the judicial activism many conservatives
liken to legislating from the bench to achieve political ends.
The most polarizing example of judicial activism revolves around
Roe v. Wade, which bore the right to an abortion from the right
to privacy. An originalist would argue that the framers never
contemplated the right to an abortion, thus only Congress or
the states can manufacture such a right. The originalist is not
concerned that the right to abortion exists, but that it should
be created though the appropriate means rather than a politically-charged
Strict constructionism, the
other bedrock of Justice Thomas' judicial philosophy, comes into
play where the Constitution is silent on an issue or original
intent is unclear. A strict constructionist would analyze the
textual construction of federal law so as to rule in keeping
with its legislated intent.
In principle, the concept is
easy - but it can be grueling in practice. Sometimes even strict
constructionists differ in their interpretations of the textual
meaning of a given law. What is important, however, is their
common goal to rule not on their personal inclinations but on
the content of the actual text of law.
Justice Thomas is generally
joined by Justice Antonin Scalia on both legal opinions and their
adherence to conservative judicial principles. Naturally, conservatives
also salivate at the prospect of a Chief Justice Scalia. With
this in mind, why would Scalia not be preferable to Thomas given
Scalia's greater experience, academic background, and less controversial
presence on the Court?
One reason is Justice Scalia's
age. At 56, Justice Thomas is the Court's youngest member. It's
a significant difference to Scalia's 68 years considering it
is a lifetime appointment. While youth constitutes no guarantee
he would outserve Scalia, Thomas' selection offers the likelihood
of a longer term.
Another reason is Justice Scalia's
widely-publicized comments regarding how he and Justice Thomas
differ regarding stare decisis, or adherence to legal precedent.
While Scalia too rules by looking towards original sources like
Thomas, he also gives considerable weight to previous Supreme
Court decisions and applies these precedents - even if they are
grounded in years of faulty constitutional interpretations.
Justice Scalia's adherence
to stare decisis would be both mandatory and appropriate in lower
courts, however, he fails to fully recognize the leadership role
the Supreme Court must play in refining federal law. For example,
the discriminatory precedent of Plessy v. Ferguson was overturned
when the Brown v. Board of Education decision ended segregation
in public schools. Moreover, rigid adherence to stare decisis
theoretically would have had Scalia voting to uphold the infamous
Dred Scott decision that established slaves as property instead
of persons with legal standing.
Justice Thomas' bold approach
to reasserting constitutional basis of the law enables him to
vote to overturn precedents aberrant to original spirit of the
Constitution. He thus recognizes the responsibility of the Supreme
Court to exert leadership and not simply to ensure the continuity
of poor previous decisions.
Justice Clarence Thomas is
obviously the U.S. Supreme Court's preeminent guardian of the
Constitution - the centerpiece of our great nation. Accordingly,
President Bush should enthusiastically nominate him to preside
over the Court when the esteemed Chief Justice Rehnquist finally
announces his retirement.
Jeffrey Brian Hicks, a member
of the black leadership network Project 21, is a freelance writer
in Northern Virginia who focuses on social and public policy
issues. Comments may be sent to [email protected].
Published by The National Center for Public Policy Research.
Reprints permitted provided source is credited. New Visions Commentaries
reflect the views of their author, and not necessarily those
of Project 21.
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