Thomas Sowell

Over the years, there have been a number of books written about Supreme Court Justice Clarence Thomas. Some of these books have looked at Justice Thomas politically, some biographically or racially -- and with various degrees of bias or inaccuracy.

Now, more than a dozen years since Clarence Thomas became a member of the High Court, there is at last a book about his day job -- interpreting and applying the law.

More than 300 of Justice Thomas' Supreme Court opinions are quoted and analyzed in a recently published book, The Keeper of the Flame by Henry Mark Holzer.

Unlike most of his fellow justices, Clarence Thomas writes in a very direct and straightforward way that cuts through the fog of rhetoric to the heart of the issues involved.

One of the themes that runs through these many opinions on a wide variety of issues is that it is not a judge's job to make social policy -- and that much harm can result when they try. This harm extends far beyond the particular people involved in the cases that come into court.

The consequences of the errors and uncertainties generated by judicial activists reverberate throughout the whole society for years, and even generations, to come.

In one of his dissenting opinions, Justice Thomas declared that the Supreme Court was making "policy-laden judgments that we are ill equipped and arguably unauthorized to make" -- and that this represented "functioning more as legislators than as judges."

He added: "The outcome of constitutional cases ought to rest on firmer ground than the personal preferences of judges."

That firmer ground is the original meaning of a law when it was passed. If that meaning needs to be changed, then it is up to elected officials to change it, not judges. That is what the democratic process is for.

When legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on. But when judges change the law by reinterpreting it, based on the "evolving standards" of a "living constitution," nobody knows that they have violated the law until after the fact, when it is too late.

Retrospective laws are expressly forbidden by the constitution. But the "evolving standards" of a "living constitution" amount to retrospective laws by another name.

In one case, Justice Thomas said that if "I were a member of the Texas legislature," he would have voted against the law that the U.S. Supreme Court was examining. But, as a member of that court, his duty was to vote on the constitutionality of the law, whether he agreed with it or not -- and he voted that the law was constitutional.

In another case, he said that the constitution "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." Again, it is up to the electoral process to do that, not an unelected judiciary.

However, when legislation violates the constitution, Justice Thomas has not hesitated to vote to strike it down, as with so-called "campaign finance reform" in the McCain-Feingold bill or the laws that allowed local politicians to seize private property and turn it over to other private individuals under "eminent domain."

In these and other cases, what mattered was what the constitution said -- and what that meant when it was said. Justice Thomas has therefore refused to read the constitution's ban on an "establishment of religion" as if it meant a "wall of separation" between church and state, requiring the obliteration of religious symbols from public property.

There is no such wall in the constitution, and an "establishment of religion" had a very plain and limited meaning when those words were written -- a coerced support for a government-designated religion. Justice Thomas' opinions often go back into history to show what the constitution's original meaning was.

In response to someone who wanted the Ten Commandments removed from a courthouse, Justice Thomas said: "He need not stop to read it or even look at it, let alone express support for it or adopt the Commandments as guides for his life." There was "no coercion" as there was when there was an establishment of religion.

(Editor's Note: The Keeper of the Flame is now on sale at Amazon.com.)


Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

Creators Syndicate



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