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Justice for Clarence Thomas

The myth of judicial neutrality has been a favorite Republican dogma for decades: Nixon, Reagan, and Bush all condemned liberal justices for “inventing” rights based on their own personal moral views, and promised to appoint justices who would decide constitutional cases in a neutral way, so that their decisions would be based only on the law and in no way on their own moral views. They and their nominees, including Bork, appealed to the idea of an “original intention” to explain how constitutional decisions could be neutral. Justices can decide even very hard constitutional cases, they said, by discovering and applying the intentions of the constitutional “framers”—the statesmen who enacted the particular constitutional clauses in question. But Bork’s conspicuous failure to provide a coherent defense of that view, in his own Senate confirmation hearings and in his later book, has exposed the view’s central failure.4 We must understand the intentions of the framers of the equal protection clause, for instance, to be abstract rather than concrete: they intended to say what they did say, that the law should treat people as equals, not that it should treat people in the way they themselves happened to think amounted to treating them as equals. So even judges who accept the responsibility of respecting the framers’ intentions must still decide for themselves what treating people as equals requires in the circumstances of contemporary society.5

If the senators had read Thomas’s past writings carefully, they would have discovered the important fact that he himself had rejected the neutrality thesis, and had been preaching against it for many years. He rejected “original intention” jurisprudence as it had been understood by other conservative lawyers, which, he said, “readily lapses into a Holmesian indifference toward or even contempt of ‘values.’ ” “I would advocate instead,” he said, “a true jurisprudence of original intent” in which “morality and political judgment are understood in objective terms.”6 Conservatives should argue, he said, not that judges can discover some “original intention” of the founders that is sufficiently detailed and concrete to decide all constitutional cases, but that the best substantive political morality, and therefore the best interpretation of the abstract clauses of the Constitution, is a conservative one. That is, that the best contemporary understanding of the abstract ideals declared not only in the Constitution, but in the Declaration of Independence and the Federalist Papers as well, justifies conservative views about abortion and economic rights and the injustice of affirmative action. “The higher law background,” he said, “…provides the only firm basis for just, wise, and constitutional decisions.”7

That was the real—but unfortunately misunderstood—point of Thomas’s repeated discussions of “natural law” in his speeches and articles. Several senators questioned him about natural law in the hearings, and the press devoted much time and space to discussions of the subject. But the committee exchanges, and most of the press reports, were deeply confused. The phrase “natural law” refers to an objective moral reality which endows people with fundamental moral rights that are not created by custom or convention or legislation, but rather exist as an independent body of moral principle.8 As Thomas pointed out, most of the eighteenth-century statesmen who drafted and argued for the Constitution believed in natural law. So, I think, do most Americans now: most of us think that apartheid, or torture, or other forms of brutal repression, for example, are morally wrong, according to objective principles, even when condoned by the laws in force where they occur.

The idea of natural law has figured in two very different, though both controversial, claims that legal philosophers have debated over the last several centuries. The first is an absolute claim about the ultimate test of what the law actually is in any political community. Some philosophers, including Saint Thomas Aquinas, insisted that natural law must be treated as the ultimate law of any human society, so that laws made by human legislators, including statesmen who frame constitutions, are invalid—no law at all—if they contradict that fundamental moral or divine law.

Some of the American abolitionists were advocates of natural law in that absolute sense: they argued that the Constitution itself was legally invalid because it embodied an unjust compromise that permitted slavery to continue, a compromise that was contrary to natural law. Some twentieth-century legal philosophers, including Lon Fuller of the Harvard Law School, took the same view of the Nazi legal system: they argued that Nazi laws were invalid because they were too immoral to count as law at all. I know of no constitutional scholar who applies that view to the American Constitution now, however: no scholar claims that part of what the Constitution plainly says is not binding on judges because it is too immoral to be law.

The second claim in which the idea of natural law figures is a very different and much more popular one. It is interpretive rather than absolute: it holds not that immoral laws are invalid but that abstract or vague or otherwise unclear laws, including the abstract clauses of the Constitution, should be interpreted, so far as their language permits, to conform to the objective moral rights the natural law doctrine assumes people to have.9 The interpretive view holds that when judges must decide, for example, whether some punishment offends the Eighth Amendment’s condemnation of “cruel and unusual” punishments, they should decide by asking which punishments are, as a matter of objective moral fact, really cruel; and when they must decide whether some law offends the due process clause of the Fourteenth Amendment, they should decide by asking whether the law violates an important objective moral right.

Thomas’s writings make plain that he had the interpretive not the absolute natural law claim in mind. The interpretive claim does not imply, as the absolute one does, that Supreme Court justices have the authority to override the clear terms of the Constitution when they believe morality would dictate what they know the Constitution does not. But the interpretive claim plainly rejects the ideal of neutral adjudication that Thomas claimed to hold when he spoke in the hearings about stripping down like a runner. Two judges each of whom accepts the interpretive claim will produce dramatically different decisions if they disagree about what objective moral rights people actually have. Thomas said, in his speeches, that liberals had been using the interpretive natural law method to support liberal decisions, and he encouraged conservatives to use the same method in a radically different direction: to emphasize the moral rights of a fetus rather than of a pregnant woman, and the moral dignity of individuals disadvantaged or insulted by affirmative action rather than of groups benefited by it. Objective morality, he said, as conservatives understand it, provides the best understanding of the Constitution, and is therefore the best protection not only against what he called “run-amok judges” but also “run-amok majorities”—majorities who might vote for permissive abortion laws or affirmative action “set-aside” programs or restrictive economic regulation.10

Senator Biden and other senators for some reason assumed that Thomas’s earlier endorsements of natural law were meant as endorsements of the absolute, now almost unanimously rejected, claim. They asked him whether he really thought that Supreme Court justices could “override” the Constitution in the name of ultimate moral principles. Thomas accepted that mistaken characterization of his earlier statements, and said that his interest in natural law was only theoretical—he was interested in how Lincoln, as a statesman, could have thought the Constitution invalid on the question of slavery—and that he obviously did not think that judges had the power to declare the Constitution invalid. That seemed evasive, because, as Biden pointed out, his earlier statements were plainly about what judges, not statesmen, should do. But if he had corrected the senators’ mistake, and insisted that he had in mind the interpretive claim of natural law, which obviously includes a view of how judges should decide cases, he could not have maintained his pretense of believing that judges could decide constitutional cases in a neutral, stripped-down way. He would have opened himself to exactly the discussion of his substantive views of moral principle he was so anxious to avoid, presumably because he knew how unpopular his views would be with the senators and their constituents.

The senators’ confusion over natural law made it easier, therefore, for Thomas to disassociate himself from his own jurisprudence. If the committee had correctly identified his past view as rejecting the myth of neutral adjudication, and as urging judges to take objective morality into account in deciding what the Constitution means, then the senators could more easily have pressed him to discuss his own moral beliefs. He could then have been asked, for example, how judges should reach and test their moral convictions. He sometimes flirted with an explicitly theological explanation of the source of the conservative view of moral rights. “As John Quincy Adams put it,” he said, ” ‘Our political way of life is by the laws of nature of nature’s God….’ “11 But for the most part he rested his argument on the Declaration of Independence and on the fact that the founders believed in an objective moral order, as the Federalist Papers, among other sources he cited, amply demonstrate.

None of these sources, of course, is an authority for the view that the objective moral order is a distinctly conservative rather than a liberal one. The proposition that all men are created equal, and are endowed with inalienable individual rights, leaves entirely open what equal citizenship consists in, and which moral rights people actually have. Thomas simply assumed—as he expected his conservative audiences would—that these natural rights were inconsistent with abortion, affirmative action, and burdensome regulation of business. Once he had acknowledged the dominant role of moral conviction in constitutional adjudication, however, he would have had no ground on which to refuse to defend his own opinions on these and other issues. He might have declined to say how he would decide particular pending Supreme Court cases. But he could not have avoided discussing the general moral issues he had himself raised as central to large numbers of cases. The resulting discussion would have been fascinating, not only for its impact on his nomination, but as a rare opportunity for a public discussion of moral issues about which the nation is now very deeply divided.

Of course since Thomas had presumably been coached to say as little as possible, he might have disowned the second as well as the first claim of natural law, even if these had been carefully distinguished. He might well have insisted that, contrary to what he had said so often before, judges really can decide great constitutional cases in a morally neutral way. But if any member of the committee had been ready to challenge that myth, he could have pressed Thomas to defend it against Thomas’s own earlier objections. In his speeches Thomas had ridiculed the idea that “original intention” can provide clear results in all or even the most difficult cases. Did he now mean to endorse that method? If so, how would he answer his own powerful objections to it, as well as the objections others have raised?

What other neutral method could he describe? The main academic opponents of the idea that moral principle should play a role in legal interpretation are skeptics, who claim that the very idea of objective moral principle is an illusion. They advocate not that judges decide cases neutrally, which they rightly regard as impossible, but that judges should enforce their own personal preferences, just because they are in power and therefore in a position to make their own preferences into law. We have good reason to fear, as I recently argued in these pages, that Chief Justice Rehnquist and some of his supporters on the court actually embrace that cynical form of skepticism.12 But Thomas could hardly have publicly endorsed it.

In the end, however, Thomas was allowed to hide behind the standard Republican myth, the myth he had himself so often denounced, because none of the senators insisted on what is obvious: that the Supreme Court is necessarily a forum of principle where the justices’ own convictions about the most fundamental issues of democracy and justice will often be decisive of what the Court decides. I do not mean to endorse Thomas’s own interpretative natural law view, which, as he explained it in his articles, makes only the justices’ opinions about objective moral reality pertinent to their decisions.

He ignored a crucial requirement of constitutional adjudication: Supreme Court justices, like all judges, must always respect the integrity of the law, which means that they must not deploy moral principles, no matter how much they are personally committed to such principles, that cannot be defended as consistent with the general history of past Supreme Court decisions and the general structure of American political practice.13 But very often sharply different political principles, which recommend very different results in a new case, can both be seen as consistent with the past, and justices then have no choice but to decide for themselves which to prefer on general grounds of political morality.

In the Griswold case, for example, in which the Supreme Court announced the right to privacy which figures so prominently in the abortion controversy, both the principle that individuals have a right to be sovereign over personal decisions central to their moral personality, and the principle that they do not, had support in different parts of constitutional history. The Court’s decision, in favor of some form of that right, was necessarily based on the justices’ own sense that the right of privacy is not simply something some citizens are anxious to have but is rather a central feature of any genuinely free society.

No doubt many people, perhaps including many senators, prefer the myth of morally neutral adjudication to that more complex but more accurate description of how justices interpret the Constitution. But we can no longer afford whatever comfort the myth may give us. Successive Republican administrations have campaigned to capture the Supreme Court for their right-wing constituencies for the next generation. Conservatives used to say that they were taking the Supreme Court away from the elitist liberals and handing it back to the people. But the Bork defeat showed that they were wrong about the kind of Constitution the people actually want.

If Thomas is confirmed, it will make plain what the Kennedy and Souter appointments suggested—that further right-wing appointments to the Court are much more likely to succeed if the nominees’ convictions and intentions are kept hidden from the public. The Senate’s constitutional role requires it to combat that unattractive strategy by refusing to let nominees picked for their politics hide behind the myth that politics never matter. Next time the myth should be attacked directly, by senators or committee counsel who can explain to the public why constitutional philosophy matters very much, and why nominees who say they have none are unfit for the job they want.

October 10, 1991

  1. 4

    See my article “Bork’s Jurisprudence,” in the 1990 Chicago Law Review, and also Lawrence Sager’s review of Bork’s book The Tempting of America: The Official Seduction of the Law in The New York Review, October 25, 1990.

  2. 5

    Of course that problem would not arise if we accepted a more extreme version of the “framers’ intention” view: that judges should never recognize any concrete constitutional right they do not believe the framers themselves would have recognized as implied by their abstract clauses. But no one could be confirmed who really held that view, because that view entails that major landmark decisions of the Court, including many Thomas announced he supported, such as Brown v. the Board of Education and Griswold v. Connecticut, were wrong because the framers did not intend to outlaw racial segregation or to recognize a right to use contraceptives.

  3. 6

    Notes on Original Intent, submitted by Judge Thomas to the Judiciary Commitee.

  4. 7

    See Thomas, “The Higher Law Background of the Privileges and Immunities Clause of the Fourteenth Amendment,” Harvard Journal of Law and Public Policy, Vol. 12 (1989).

  5. 8

    See my article, ” ‘Natural Law’ Revisited,” University of Florida Law Review, Vol.34 (1982), p. 165.

  6. 9

    In fact, many people who hold this view in substance would not describe it as appealing to “natural law,” which is a term more often used by the view’s detractors, perhaps because of the term’s historical associations with religion. They prefer to say simply that judges must take peoples’ moral rights into account in deciding how to interpret the abstract clauses of the Constitution. But the substance of their view is the view I describe in the text.

  7. 10

    See note 7, above, pages 63–64.

  8. 11

    Remarks of Clarence Thomas at California State University, San Bernadino, April 25, 1988.

  9. 12

    See my review of Charles Fried’s book Order and Law: Arguing the Reagan Revolution—A First Hand Account, The New York Review, July 18, 1991.

  10. 13

    I try to describe what the constraint of integrity means in practice in my book, Law’s Empire (Harvard University Press, 1986).

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