National Review Symposium on Justice Thomas’s Quarter-Century on #SCOTUS

July 1st, 2016

National Review hosted a symposium on Justice Thomas’s twenty-fifth anniversary on the Court, with contributions from Randy Barnett, Richard Epstein, John Yoo, and many others. My submission focused on Justice Thomas’s aspiration to revisit old precedents that conflict with original meaning in “an appropriate case.”

Justice Clarence Thomas’s quarter century on the Supreme Court has been defined by a principled devotion to understanding the Constitution’s original meaning and applying it to modern-day cases. His fidelity to text and history is embodied in a phrase he has used in 16 concurring or dissenting opinions: In “an appropriate case,” he would be willing to reconsider the Court’s longstanding precedents that cannot be reconciled with originalism. An example from his very first week on the bench illustrates his steadfast commitment to the Constitution.

After a bruising confirmation battle, Justice Thomas was sworn in to the Court on October 23, 1991. By that point, he had already missed all of the October cases and had to scramble to prepare for the next batch, which would be heard ten days later. On November 5, Thomas’s second day on the bench, the Court heard arguments in White v. Illinois. The facts were unsavory. A four-year-old told her babysitter that Randall White, who had just fled her bedroom, “touch[ed] her in the wrong places.” During White’s trial, the toddler was unable to testify due to “emotional difficulty,” so the state introduced as evidence the babysitter’s out-of-court statement. The trial court overruled the defendant’s objection that, under the Sixth Amendment, he had the right to confront his accuser. With the babysitter’s statement as evidence, White was convicted.

A few days after White was argued, Justice Thomas attended his first conference. The majority of the Court voted against White. Under settled precedent, the babysitter’s statement was admissible because it was “reliable.” Only a few days into the job, it would have been easy enough for Thomas to simply go along to get along. But from the very beginning, Thomas pursued the original meaning of the Constitution, even if that history conflicted with the Court’s settled precedents. This was true regardless of his personal preferences. Even though the law-and-order justice likely had little sympathy for a child molester, the procedural protections of the Sixth Amendment prevailed on him.

In an eight-page dissenting opinion, joined by Justice Scalia, Justice Thomas wrote that his colleagues’ “Confrontation Clause jurisprudence has evolved in a manner that is perhaps inconsistent with the text and history of the Clause itself.” Realizing that he was only in dissent, Thomas wrote that he would reconsider this doctrine “in an appropriate case.” In the meantime, lawyers, scholars, and judges can study and consider the persuasive arguments from Thomas and Scalia. Thirteen years later, that “appropriate case” would arrive. In Crawford v. Washington, the Court voted to restore the Confrontation Clause’s original meaning and jettison the postmodern “reliability” framework.

From his first week on the bench, Justice Thomas understood that a single opinion cannot right the law right away. But given reason, logic, and time, “in an appropriate case” the Constitution will ultimately prevail. Thomas’s fidelity to the rule of law and the power of courts should inspire us all, and hopefully several more of his colleagues, for another quarter century to come.