It’s now been two weeks since the landmark decision upholding Obamacare. Most of the attention has, understandably, been on Chief Justice John Roberts since he turned out to be the pivotal vote in the 5-4 split on the Supreme Court. Still, for anyone who takes seriously the fact that the Constitution established a federal government of limited and enumerated powers, there is one Supreme Court Justice that consistently stands head and shoulders above the rest–and that’s Clarence Thomas.
Thomas’s opinion in the Obamacare case was quite short–just a few paragraphs–and that’s because he previously filed a lengthy opinion in the landmark Lopez ruling in 1995, the first ruling in some 60 years where the Supreme Court finally applied the brakes to federal laws that were based upon a boundless reading of the commerce clause. Thomas explained how the federal government had assumed vast powers under the commerce clause that were inconsistent with the original understanding of the Constitution. After having explained his view at length, Thomas now files only terse opinions that refer readers back to what he said in the Lopez case.
In 2010, for example, when the Supremes upheld a federal criminal law against a constitutional challenge, Thomas said the Court’s majority ”genuflects” to the doctrine of enumerated powers but then “endorses the precise abuse of power that Article I is designed to prevent–the use of a limited grant of authority as a ‘pretext … for the accomplishment of objects not intrusted to the government.’” The other justices tend to ignore Thomas’s reasoning. They satisfy themselves with a bland … “Our precedents about the commerce clause say it is a very broad power, etc etc”
Thomas rarely asks questions during the Court’s oral arguments. He prefers to stay out of the spotlight and let his written opinions speak for themselves. And because his views are clearly articulated, everyone (academics, reporters, Supreme Court advocates) knows where he stands, so they focus on the “swing vote” and speculate about which direction some justice will ”swing.”
Be that as it may, let’s not take Justice Thomas for granted. He regularly calls out the Emperor for not having any clothes. Since one can safely assume that George H.W. Bush did not plan that out (his other selection to the Supreme Court was David Souter, after all), luck was in play.
For more on the Obamacare ruling, go here. For a good book about Clarence Thomas’s views, go here. If you’re not ready for a book, do check out Thomas’s opinions in these cases: Lopez (1995), Morrison (2000), Sabri (2004) Raich (2005), and Comstock (2010). David Bernstein has some related thoughts here.