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Clarence Thomas, the Eccentric

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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U.S. Supreme Court justices may be wise, obtuse, fair or political, but we don't ordinarily think of them as eccentric. William O. Douglas, who was on the court in the middle of the 20th century, has long counted as the only unambiguously eccentric justice. But now, as an opinion on separation of powers issued last week makes clear, Justice Clarence Thomas has joined him. 

A judge can be counted as eccentric if he holds positions that don't fit with established law and that depart, frequently and significantly, from those that prevail within the court. A judge who is eccentric is not necessarily wrong, and eccentricity can be appealing. To many liberals, and especially to many law students, Justice Douglas seemed bold and admirably rebellious, in part because he was not bound by precedents. 

As early as 1949, Douglas insisted that the “search for a static security -- in the law or elsewhere -- is misguided.” In his view, “security can only be achieved through constant change, through the wise discarding of old ideas that have outlived their usefulness, and through the adapting of others to current facts.” In his 36 years on the Court, he practiced what he preached. 

Douglas believed that the First Amendment forbids any regulation of sexually explicit speech, including the most obscene, and that it essentially obliterates the law of libel (at least when public issues are being discussed). A lifelong lover of nature, he famously argued that trees, streams and other inanimate objects should have standing to bring suit in federal court. He also insisted on an expansive right of privacy, including “freedom to wander and to loaf” and broad “control over the development of one’s intellect, interests, tastes and personality.” 

Justice Thomas is also a fan of liberty, but ideologically he stands at the opposite pole from Douglas, and he interprets the Constitution in a radically different way. More than any justice in history, he is an originalist, insisting that the Constitution’s provisions should be interpreted to mean what they meant at the time they were ratified. Like Douglas, however, Thomas isn't committed to respect for precedent; he believes the original meaning of the Constitution has priority over any judicial interpretation. 

The results can be unquestionably eccentric. Last week, Thomas announced his view that Congress lacks the constitutional power to give administrative agencies (such as the Department of Health and Human Services and the Environmental Protection Agency) the authority to “formulate generally applicable rules of private conduct.” That’s radical stuff. It appears to suggest that HHS can't issue binding rules to implement the Affordable Care Act and that EPA can't issue the air quality rules that have defined its work for more than four decades. 

And that’s just the tip of the iceberg. Thomas has said that the First Amendment broadly forbids regulation of commercial advertising and campaign contributions. He is the only member of the court who contends that the states may establish official religions (because the Constitution’s Establishment Clause applies only to the the federal government, and not to the states). He thinks that prisoners have no free speech rights and that the same is true of students (at least while in school). He thinks that the Constitution flatly forbids public institutions from adopting affirmative action programs. In all of these areas, and many others, Thomas rejects earlier court rulings that contradict him. 

Douglas was often likened to his colleague Justice Hugo Black, because they both tended to be left of center, and because they frequently agreed. But Black was generally more cautious and more respectful of precedent. Thomas is often paired with Justice Antonin Scalia, but Scalia, who has described himself as a “faint-hearted” originalist, is frequently willing to defer to precedents even if, in his view, they depart from the original understanding. To the extent that Thomas is this generation’s Douglas, Scalia can be regarded as its Black. 

Justice Thomas's many fans will no doubt abhor this analogy. They will correctly point out that, for Thomas, the original meaning of the Constitution is the lodestar; for Douglas, it was irrelevant. On this view, Douglas was essentially lawless, while Thomas is committed, above all, to fidelity to law. Maybe so. 

Nevertheless, both justices count as outliers, repeatedly rejecting precedents in favor of their idiosyncratic understanding of the Constitution’s meaning. And no less than Douglas, Thomas usually interprets the Constitution in a way that fits well with his admirers' political convictions. For all their differences, the court’s two eccentrics have a lot in common.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net