As this article goes to press, the nomination of Judge Clarence Thomas to the Supreme Court apparently hinges on how many senators accept the charges made by Professor Anita Hill, of the University of Oklahoma Law School, that Thomas sexually harassed her when she was his assistant at the Department of Education and the E E O C Though the Senate Judiciary Committee knew of the accusation before it voted on the nomination, no member of that committee mentioned it publicly until it was leaked to the press only two days before the whole Senate was scheduled to vote on the nomination. Thomas’s supporters were ready to insist on a vote as scheduled, but so much of the public was outraged at the nearly all-male Senate’s seeming indifference to a charge of sexual harassment, and so many senators who had planned to vote for him were reluctant to do so without further investigation, that the supporters agreed to a one-week postponement, and the Judiciary Committee undertook to hold further hearings, restricted to investigating these and perhaps other charges of similar misconduct, at which Thomas and Hill agreed to appear.
The Senate plainly mismanaged the matter, and the reputation of the Judiciary Committee and of senators who opposed a delay has been damaged. But it would be very unfortunate if these serious failings obscured other, more structural and pervasive, defects in the nomination process that the hearings had already revealed. Before Hill’s allegations were made public, even Thomas’s opponents predicted that he would be confirmed by a comfortable if not great margin. The Senate was ready to overlook doubts about his qualifications that are in the long run more consequential for constitutional law than those on which the public’s attention became concentrated after Professor Hill’s charges became known.
When the Judiciary Committee began its hearings, Senator Herbert Kohl of Wisconsin laid down a test he said the nominee must meet. Thomas had said in 1990, when the committee was considering his appointment to the District of Columbia Circuit Court, that he did not then have “a fully developed constitutional philosophy.” Kohl said that though the lack of such a philosophy did not disqualify a candidate for the Circuit Court, the Supreme Court was different. “In my judgment,” he said, “if you cannot articulate a constitutional philosophy, one that includes full safeguards for individuals and minorities and that also squares with your past statements, then in my opinion you are not qualified to sit on the Supreme Court.”
Thomas flunked that test in a spectacular way, as even some of the senators who in the end voted to confirm him conceded. He spent his five days of testimony, in fact, denying having any “constitutional philosophy” at all, and trying to explain away the past statements Kohl had in mind. Presumably his White House coaches urged him to adopt that know-nothing strategy. Robert Bork had published radical and highly controversial opinions about constitutional law before his nomination, and these caused his ultimate defeat. Justices Kennedy and Souter, on the other hand, had published almost nothing about constitutional theory; they were easily confirmed, though their votes on the Court, so far, have justified the trust conservatives placed in them.
Thomas is in some ways an exceptionally appealing candidate for the Supreme Court. He is a black man born into poverty and racial disadvantage who nevertheless achieved considerable success, and some of his supporters believe that a justice from that background will eventually raise the level of the Court’s compassion for the unfortunate. But his record is much more like Bork’s than like that of either of the two other successful nominees. Thomas was chairman of the Equal Employment Opportunity Commission in the Reagan administration, and, as one of the few blacks in that administration, he delivered several speeches to conservative groups. He was on the board of advisers of a conservative black journal, and signed an important report on family policy which called, among other things, for the appointment of justices to the Supreme Court who would vote to overrule Roe v. Wade. On several occasions he denounced affirmative action programs for blacks and other minorities, in spite of having himself been admitted to Yale Law School through such a program, and he has shown strange insensitivity to the problems of blacks less successful than himself, even suggesting that his own sister was a welfare scrounger. He condemned the Supreme Court’s decision upholding the law under which independent prosecutors can be appointed to investigate officers of the executive branch, and complained that even Chief Justice Rehnquist had voted to uphold that law, remarking that “we can no longer rely on conservative figures to advance our cause.”
Two of his published views were particularly frightening to constitutional lawyers: they were, in fact, far more extreme than anything Bork has written. In 1987, in a lecture to The Heritage Foundation, Thomas enthusiastically endorsed an article by Lewis Lehrman, a trustee of the foundation, in which Lehrman had declared that according to the “natural law” a fetus has an inalienable right to life, and that Roe v. Wade was therefore a terrible mistake. Thomas said that Lehrman’s article “on the Declaration of Independence and the meaning of the right to life is a splendid example of applying natural law.”1 But if Lehrman is right, then it follows not just that states must be permitted to make abortion criminal if a majority of their voters so wish, but that all states must be required to make abortion a crime from the moment of conception, whatever their voters think. No past nominee, including Bork, has ever offered any such view, and none of the present justices, or any prominent politician, has come close to proposing it.
In 1987, moreover, Thomas also suggested, in a speech to the Pacific Research Institute, that he supported a much more active role for the Supreme Court in protecting businesses from regulation for safety or conservation or other purposes. “I find attractive,” he said, “the arguments of scholars such as Stephen Macedo, who defend an activist Supreme Court that would strike down laws restricting property rights.” Some background is necessary to understand why that statement alarmed constitutional lawyers. In 1905, in the famous case of Lochner v. New York, the Supreme Court held that New York’s law forbidding bakeries from hiring bakers to work more than ten hours a day was unconstitutional because it violated the command of the Fourteenth Amendment that “liberty” not be infringed without due process of law. The Court used similar arguments in later cases, including cases that struck down early New Deal economic regulation.
Almost all constitutional lawyers now regard the Lochner decision, and the decisions that followed in its spirit, as disastrous mistakes. By the 1950s it was orthodox opinion that the due process and equal protection clauses leave state and national governments almost wholly free to balance competing interests of liberty, safety, equality, conservation, economic policy, and social justice in deciding how to regulate business practice. In 1955, for example, in the well-known case of Williamson v. Lee Optical, the Court held that Oklahoma was permitted to impose restrictions on opticians that it did not impose on sellers of readymade glasses, because there might well be some rational basis for that distinction even though Oklahoma had not provided one. The Court’s hands-off attitude on economic matters is now thought necessary to allow government to regulate the economy effectively.
Stephen Macedo, who is a professor of government at Harvard, and some other constitutional scholars, including Richard Epstein of the University of Chicago Law School, have argued that the Court should reverse that practice and apply a stricter test to protect businesses, a test much closer to the strict test it uses to protect individuals from racial and other forms of discrimination. Macedo argues, for example, that the Court’s decision in the optician case should now be overruled, and that the natural rights the Constitution protects should be understood to include economic as well as personal rights. 2 Bork, on the contrary, had emphasized his own firm opposition to any return to the spirit of the Lochner case; he supported the orthodox view that businesses do not have any substantial constitutional rights that restrict what government can do by way of safety or redistributive programs, beyond the right to be compensated when government directly confiscates their property.
It is extremely doubtful that Thomas could have been confirmed if he had remained loyal to his extreme position about abortion and his support for strengthened economic constitutional rights. He might simply have told the committee that he had changed his mind on these matters. But Bork had announced similar important changes in his views, and was savaged for what his critics then called, skeptically, a “confirmation conversion.” So Thomas’s advisers counseled a different strategy: they doubtless told him simply to disown ever having held the views his past statements seemed to announce.
Thomas explained his endorsement of the Lehrman article by saying he wanted to interest a conservative audience in civil rights, and thought that introducing them to the idea of natural law would be helpful to that end. He had, he said, chosen the Lehrman article to praise because his lecture was in the Lehrman auditorium, and he thought the choice of Lehrman would please his right-wing audience. He had only skimmed the article, and did not know that the only example of natural law thinking it contained was Lehrman’s argument about abortion, in spite of the fact that Lehrman’s article was titled “The Declaration of Independence and the Right to Life.”
He took the same line about his reference to Macedo. He could not recall Macedo’s arguments, but only that he found them interesting. He meant merely to endorse the general idea that people have rights under natural law, not to endorse the particular use that Macedo actually made of the idea. Nor did he think that “natural law” or “natural rights” really had any connection with constitutional law at all. He had meant to say, in praising Lehrman’s and Macedo’s arguments about how the Court should decide cases, only that he found the idea of natural law interesting in some contexts, as an idea to “play around with,” not that judges should use natural law to decide cases.
Several senators expressed dissatisfaction with these unpersuasive disavowals, but they were unable to coax any better explanation from him of what he had meant. Some senators attempted to discover his present views. They asked whether he accepted that the Constitution contains a right to privacy. Bork had denied any general right to privacy—he criticized the idea as something liberal judges had invented. But Kennedy and Souter had both said the Constitution does include such a right, and they had been easily confirmed. Thomas said he now agreed with them. But when he was asked the obvious next question—whether he thought the right to privacy includes a woman’s right to control her own reproduction, as the Court had held it does in Roe v. Wade—he declined to answer on the ground that disclosing his opinion about that case would compromise his independence when the Court was asked to overrule it.
That is absurd. Judicial independence does not consist in justices having no previous opinions about the issues that come before them but in their willingness to attend carefully and honestly to arguments on both sides, and to be ready to change their minds if convinced. The majority of the present justices have made their opinions about Roe v. Wade plain, and no one doubts, for that reason, that they can fairly decide whether it should be reversed.3 There are, I believe, sound reasons why nominees should in principle be reluctant to disclose their views about pending or imminent cases. The Constitution is designed to protect minority rights from violation by majoritarian authority, and it would undermine that function if senators could veto nominees who admitted an intention to vote for a politically unpopular minority in a pending case. But in this case there were important countervailing reasons for candor. Thomas was nominated by the leader of a party whose platform promised to appoint judges who would overrule Roe v. Wade, a fact that raised at least a suspicion that the administration knew how he intended to vote. In any case, as Senator Metzenbaum pointed out with some annoyance, Thomas’s scruples about discussing potential cases were highly selective: he had no compunctions about announcing his views on a number of other highly controversial constitutional issues that might well come before the Court, including not only the question of independent prosecutors which I have mentioned, but the constitutionality of criminal sentencing guidelines, and sensitive First Amendment issues about the establishment of religion.
Thomas could, moreover, have discussed the central jurisprudential issues involved in the abortion controversy—whether the right to privacy extends to procreative autonomy in principle, and what legitimate interests a state has in protecting fetal life—without having to indicate how he would resolve any conflict between that right and that interest in the circumstances of any particular case. That discussion might have given shrewd observers a good sense of his likely vote, but it would fall short of committing him to a concrete position.
Thomas would not be drawn into any discussion which bore on abortion at all, however, and some of the statements he made to suggest his openness of mind on the subject were breathtaking. Though he was at Yale Law School when Roe v. Wade was decided, he said he could not remember any discussion of the decision either in class or among fellow students. He had never since discussed the issue with anyone else, and in fact had no opinion about Roe v. Wade himself, in spite of his unstinting endorsement of Lehrman’s claim that that decision was judicial murder. He said he had signed the report on family policy, which recommended that justices be appointed who would overrule that decision, without reading the report, and did not know that it expressed that view.
So Thomas’s five days of testimony left senators with the following choice. If they did not believe his disavowals of his past statements, or his claim never to have discussed abortion with others or come to any view himself, then he had lied to them, deliberately covering up his record and opinions because he knew the American public would not wish him confirmed if it knew the truth. If they did believe him, then, by his own admission, his many speeches had been made in complete ignorance of or indifference to the most important constitutional issues of his time. He had praised books and articles he had not read or only skimmed, strongly endorsing ideas he either did not understand or rejected, just to impress particular right-wing audiences he was addressing, to get them to support his views on other matters, and, perhaps, to advance his own career in a right-wing administration. How could a senator vote for Thomas on either assumption?
But the Judiciary Committee split seven to seven on the nomination, and, as I have said, the full Senate would apparently have confirmed him if the allegations of sexual harassment had not been publicized. No doubt President Bush selected Thomas to succeed the only black justice ever appointed to the Court, Thurgood Marshall, exactly because it was so difficult for politicians to oppose a black nominee for that position. (Bush, of course, cynically claimed that race played no part in his selection.) In any case, the liberal senators who voted for him stressed his background as their reason: Senator Arlen Specter of Pennsylvania, the only Republican on the Judiciary Committee who had voted against Bork, said he voted for Thomas by paying more attention to his “roots” than to his writing, and others suggested, as Dean Calabresi of the Yale Law School had argued in his testimony before the committee, that Thomas would add diversity to the Court, and might “grow” in office. If Thomas is confirmed, we must hope that these predictions are justified, that he develops an independent position that reflects rather than denies his distinct background, and that he does not become just one more willing corporal in Rehnquist’s campaign to reverse the main achievements of constitutional law of the last four decades. Nevertheless the manner of Thomas’s appointment—the mockery it made of the Senate’s constitutional duty to pass on judicial qualification—has damaged the nomination process no matter how good or bad a justice he might become.
When the hearings closed, the Judiciary Committee’s chairman, Joseph Biden, announced that he would be considering revisions in the committee’s procedures for future Supreme Court nominations. He might recommend, as Anthony Lewis recently suggested in The New York Times, that special counsel for both sides, rather than committee members themselves, should carry the main burden of questioning a nominee, as such counsel do in other committee hearings. The main flaw in the Thomas hearings was not procedural, however, but jurisprudential. No change in procedures can protect the committee from a future stonewalling nominee—particularly one who has published very little, as Kennedy and Souter had—unless at least a substantial number of its members are willing, in public, to abandon a thesis which no one with any experience in constitutional law really believes but which most senators apparently think the public cherishes.
This could be called “the neutrality thesis”: that a Supreme Court justice can reach a decision in a difficult constitutional case by some technical legal method that wholly insulates his decision from his own most basic convictions about political fairness and social justice. The thesis does not insist only that a justice can set aside his own party or sectional allegiances, or his own self-interest, in reaching decisions, as of course he can and must. It also insists that justices can reach decisions uninfluenced by their own convictions about fundamental issues of political and constitutional philosophy. Political theorists and legal philosophers disagree about such fundamental issues: they disagree, for example, over whether an ideal democracy is one in which the constitutional rights individual citizens have against the majority are limited to detailed rights codified in explicit texts, so that contemporary majorities are free themselves to decide whether any further or more generous rights should be accorded, or whether, on the contrary, a true democracy accepts that constitutional rights should be understood as reflecting some overall, co-herent conception of free and equal citizenship, understood as a national moral ideal, so that individual citizens must have the power to argue, before courts charged with enforcing that national commitment, that the ideal grants them rights not previously recognized.
They disagree about more substantive issues as well; they disagree, for example, over whether the liberty of individuals to make personal ethical choices for themselves—about religious observance or sexual behavior, for instance—is only a liberty some people, including liberals, particularly value although others do not, or whether that liberty is, on the other hand, so fundamental to the very idea of a free society that no community that abridges it can be called truly free. They disagree about philosophical issues that cut across the other differences of opinion I have mentioned: they disagree, for example, about whether fundamental political principles, including ideals of democracy and principles affirming basic liberties, have some objective moral standing, or whether any such principles derive only from subjective preferences, so that democratic politics can be only a matter of satisfying whatever preferences or prejudices the public happens to have.
The neutrality thesis holds that an honest justice’s opinions on issues like these need not, and should not, make a difference to his decisions in constitutional cases. That is preposterous. The crucial clauses of the Constitution are drafted in very abstract moral language: they command “due process,” for example, and “equal protection of the laws.” It is true, and important, that any judge’s opinions about the correct application of these abstract clauses to particular cases must respect the Constitution’s text and the history of its enactment and interpretation. But, as almost every controversial Supreme Court decision demonstrates, these can often be read in different ways, and any particular justice’s interpretation will be dominated by his convictions about what an ideal democracy would be like, or what rights are really fundamental, or whether ideas about the character of ideal democracy and fundamental rights have an objective basis or are only subjective preferences.
It is important to see, however, that if the neutrality thesis were true, then Senator Kohl’s test would be inappropriate: the committee would have no need to investigate a judge’s own “constitutional philosophy” because that philosophy would not figure in his constitutional decisions. So different Republican senators repeatedly endorsed the neutrality thesis throughout the hearings. Senator Charles Grassley of lowa asked Thomas, for example, whether he agreed that judges should decide neutrally, applying the Constitution as it really is, not reading their own philosophy into it, as in Grassley’s view too many justices have done in recent years. Thomas solemnly said that he did agree. Some senators expressed disquiet about the neutrality thesis, and Senator Paul Simon of Illinois said that Thomas’s claim that he had no agenda was unrealistic because “the reality is that you become a policy maker on the United States Supreme Court.” But Simon did not press the point, and no senator asked Thomas how judges could be neutral in constitutional matters.
Thomas himself expressly relied at several points on the neutrality thesis as a justification for not responding to the committee’s questions. “With respect to my personal views,” he told Senator Strom Thurmond of South Carolina, “my personal views have no place in adjudication.” Several times he used a peculiar metaphor, which presupposes the neutrality thesis, to explain why his former views were irrelevant. Those views, he said, were appropriate to a politician and a member of the executive, who must sometimes act as a litigator for his administration. But now, as a judge, he had “stripped down like a runner,” shedding all past opinions and convictions so that he could just apply strict, neutral legal reasoning the way a good judge does, entirely uninfluenced by any philosophical convictions of his own about the character of democracy or the nature of the Constitution or which rights are fundamental to liberty.
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
November 7, 1991
See Thomas, Why Black Americans Should Look to Conservative Policies, The Heritage Lectures, 8. ↩
It is worth noting, however, that Professor Macedo has criticized almost every other opinion Thomas and other conservative lawyers hold. Macedo denies that fetuses have natural rights that entitle states to prohibit abortion from the moment of conception, for example, though he does think that some compromise should be struck about abortion that allows prohibition before the third trimester. In a recent book, The New Right and the Constitution, he sharply attacked Bork and other new-right lawyers for their moral cynicism, and for their hypocritical use of the “original intention” method of constitutional interpretation. ↩
The Chief Justice, Rehnquist, and Justice White dissented from the original decision in Roe v. Wade, and have in different ways continued to display their opposition. Justice Scalia dissented in the recent case of Webster v. Reproductive Health Services, which limited the right of abortion in various ways but stopped short of repealing Roe altogether, for the sole purpose of declaring his view that Roe should be repealed as soon as possible. Justice Blackmun wrote the decision in Roe, and has often stated his continued defense of that decision. Justices Stevens, O’Connor, Kennedy, and Souter have either written or joined in opinions from which general positions about abortion may be inferred. ↩
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. ↩
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. ↩
Notes on Original Intent, submitted by Judge Thomas to the Judiciary Commitee. ↩
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). ↩
See my article, ” ‘Natural Law’ Revisited,” University of Florida Law Review, Vol.34 (1982), p. 165. ↩
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. ↩
See note 7, above, pages 63–64. ↩
Remarks of Clarence Thomas at California State University, San Bernadino, April 25, 1988. ↩
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. ↩
I try to describe what the constraint of integrity means in practice in my book, Law’s Empire (Harvard University Press, 1986). ↩