With all of the Beltway gossip concerning a potential Ruth Bader Ginsburg retirement, pundits and legal analysts are overlooking the obvious. Justice Clarence Thomas, perhaps the most conservative judge on the Supreme Court, could decide to retire early and give President Donald Trump a chance to choose a conservative successor.
Although many Republican strategists might view this as a favorable opportunity, the downside is that it would be all but impossible to appoint another justice with Thomas’s principled conservatism, originalist views on the Constitution, and courageous independence. Washington Examiner executive editor Philip Klein argues this point brilliantly in a recent opinion column, insisting that any strategic benefits realized from Thomas’s near-term retirement would be diminished by the loss of a steadfast constitutionalist who brings a unique perspective to the Supreme Court.
For months, legal experts have been weighing the likelihood of Thomas’s departure and considering the impact on the ideological balance of the high court. CNN legal analyst Jeffrey Toobin laid out the merits for replacing Thomas in a New Yorker editorial, arguing that President Donald Trump should take advantage of the Senate’s 53-seat Republican majority to appoint a younger justice with “the potential to reshape the meaning of the Constitution for decades.”
Indeed, Klein acknowledges the risks if Thomas, who at 70 is the oldest conservative justice on the Supreme Court, decides to remain on the bench after 2020. “If he hangs as long as he can, and suffers a decline in health at some point in the future when a Democrat is president or Republicans are in the minority in the Senate, any replacement would either have to be somebody on the far left, or a ‘compromise’ choice that could effectively end up voting with liberals on major cases,” he wrote.
However, that is a risk that Klein and many other conservatives are willing to take. “That said,” he continued, “I think it’s also worth considering the importance of having Thomas on the court for the principled judgment he brings that is not likely to be replicated by any successor, even a capable conservative.”
Perhaps more than any other justice in U.S. history, Thomas is known for taking the Constitution at face value and interpreting it with an originalist bent. In fact, William Pryor of the Yale Law Journal credits him with carrying on the judicial philosophy in the absence of Justice Antonin Scalia.
“First, by providing a second originalist voice on the Supreme Court, Justice Thomas has made it impossible for lawyers and judges to ignore originalist arguments. Second, and more importantly, by writing opinions that often disagreed with those of Justice Scalia, Justice Thomas has rebutted the conventional criticism that originalism is a wooden or results-oriented methodology.”
Klein cites Thomas’s “powerful dissent” in Kelo v. New London, when the conservative judge wrote that “Something has gone seriously awry with this Court’s interpretation of the Constitution,” in defiance of a majority opinion that granted the government the right to seize private property from businesses for purpose of economic development. Moreover, Thomas was instrumental in overturning a precedent established in Ohio v. Roberts which allowed prosecutors to introduce hearsay as evidence based on inconsistent and unconstitutional standards.
Thomas should also be praised for refusing to let partisanship influence his legal opinions. “The late Antonin Scalia was known for his views on federalism and for his originalist jurisprudence, but on occasions he allowed his cultural conservatism to cloud his judgment,” Klein explained.
Not so with Thomas, who resisted issuing judicial rulings simply because they were politically in vogue. When the majority ruled in Gonzalez v. Raich that federal drug enforcement officials could prevent private citizens from growing medical marijuana for personal use in accordance with state laws, arguing that “if Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”
Courage under fire
More than any other qualities, however, Klein believes that Thomas’s “judicial courage” and “unique perspective” as a black conservative will be the most difficult to replace. Growing up in the segregated south, and having survived a “high-tech lynching” during his Senate confirmation hearings, Thomas has no higher loyalty than the U.S. Constitution. “For conservatives who want to see the Supreme Court forge a new path and undo flawed jurisprudence of the past,” Klein argues, “courage should be seen as just as important a quality for a justice as their philosophy and qualifications.”
Republicans need to muster some of the same courage that Thomas has demonstrated during his 28 years on the Supreme Court and support the conservative magistrate’s presence on the bench. Although the “cold rationale” behind an earlier retirement may be prudent, Klein is correct when he asserts that “his voice on the court would be irreplaceable.”