Standing apart

Dan McLaughlin writes in The Weekly Standard about the stellar record of Supreme Court Justice Clarence Thomas.

...This is the second time in three years that Thomas has written the most opinions, and they are not filled with breezy rhetoric, but thick with citation to the roots of our constitutional system, from the Magna Carta to John Locke to Blackstone’s Commentaries.

But mere volume is not the measure of Thomas’s jurisprudence. For that, one must take a closer look at the many times he has stood against the prevailing winds, warning his colleagues that the Court should consider its own errors and limitations. The cases in which he has split from Scalia — his closest colleague philosophically — are telling.

...Clarence Thomas is an affable man, if one who does not forget his scars, and by all accounts he gets on well enough with his colleagues. But given that few of them other than Scalia bother responding to his lone opinions, one wonders if some of them look at him a little funny—“that guy who keeps going on about the Constitution.” He is known to prefer the company of almost anyone to the company of his fellow judges and lawyers; he meets more often than any other justice with groups of visitors to the Court and travels the country in his RV during the Court’s recesses. But that distance makes him uniquely suited among the justices to look at this country not from the perspective of a member of the judicial high priesthood, but as a citizen ruled by it. Some critics suggest that he may be biased by the fact that his wife is active in Tea Party groups, but after his nearly quarter of a century on the Court, suggesting that Thomas’s view of the Constitution is influenced by the Tea Party is rather like suggesting that Newton’s physics were influenced by Einstein.

...Thomas’s opinions this term form a coherent whole, one that places no trust in institutions—in the wisdom of judges, the expertise of bureaucrats, or the evenhandedness of either—but depends instead on clear, written rules and structural checks and balances. And his philosophy, while grounded in the same principles as our Constitution itself, should not surprise us. Thomas is not so far removed from his upbringing in segregated Georgia that he cannot remember what it was like to live in a place and time in which the government was staffed and run by people who had no intention of treating you fairly.

Two strategies are available to a citizen confronted by such a government. One is to keep for himself as large a space as possible free of the government, in which to exercise true liberty. The other is to insist on the punctilious observance of the letter of the law. The whims of administrative agencies and the discretion of judges to fashion new rights and rules according to their own policy preferences threaten both of these strategies, to the detriment of whomever the people in power regard as beneath their concern. It is perhaps a supreme irony, but a fitting one, that the man most concerned with keeping alight the flame of these old concepts of liberty and dignity is the justice of the Supreme Court who grew up under a government that wished to accord him neither liberty nor dignity.

Read more here.