Doing justice to Clarence Thomas.

Legal Affairs has an excellent article on Justice Clarence Thomas. The article dispels any notion that that Thomas' selection was a pure example of affirmative action putting an unqualified man on the bench, or that Anita Hill told the truth about Thomas or that Thomas is "over is head" on the bench.

It's worth reading for a variety of reasons, including the description of his hard-scrabble childhood which was overcome by hard work; needless to say, if this biography belonged to anyone other than a conservative, it would be the stuff of legends. This part was interesting:

There can be no doubt that Thomas's approach to the Constitution is the clearest contemporary example of originalism, a belief that the Constitution and its amendments ought to be interpreted only in the manner in which they were understood by those who framed and ratified them. Anything else, for Thomas, is judicial usurpation of the legislative role.

This aspect of Thomas's judicial philosophy has been no secret (it was one of the themes of Scott Gerber's 1999 jurisprudential study of the justice, aptly named First Principles). But Foskett, at least according to one Washington Post op-ed writer, has revealed a "bombshell" by quoting Scalia in saying that in constitutional cases, Thomas "doesn't believe in stare decisis, period," referring to the practice of following judicial prior precedents instead of re-examining the merits anew each time a decision is made. With this view, Thomas differs even from his purported puppeteer, as Scalia acknowledged to Foskett. According to Scalia, Thomas believes that "if a constitutional line of authority is wrong, [Thomas] would say 'Let's get it right.' I [Scalia] wouldn't do that."

On this point, Thomas may be more right than Scalia; stare decisis is obviously an important value, but one can't help notice the "elasticity" of this value. Stare decisis was declared to be the overwhelming concern in Casey, but has no value in Lawrence. As Scalia notes:

"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

Conservative jurists would be playing a foolish game indeed, if they allow liberal jurists to "ratchet up" their preferred positions, which then must be "conserved" by stare decisis. Contrawise, if the goal of constitutional interpretation is "originalism" then "ad fontes" might as well be the slogan; the words and meaning of a text don't change over time. [Alright, I don't believe in "ad fontes." This isn't the Eighteenth Century, after all, and texts and words contain general principles that have to be worked out through practical applications of principle to real world examples.]