Thirty years have passed since his confirmation to the Supreme Court, and he has amassed a record as the court’s staunchest defender of constitutional originalism or interpreting the Constitution according to its original meaning. He earned that distinction by his willingness to stand up on constitutional principles even if he had to stand alone.
When he arrived on the court, originalism was still widely lampooned by legal academia and rejected by the vast majority of judges, with Justice Antonin Scalia the notable exception. At the beginning of his tenure on the court, Thomas was disrespected by many legal experts who dismissed him as a blind follower of Scalia.
Only years later was it revealed that when the justices met privately in conference, Thomas was taking bold positions and willing to be a lone dissenter. That was the situation in a criminal case argued during his first week on the court. After he circulated his solo dissent to his colleagues, three other justices signed on to it.
One of those justices, Scalia, was persuaded several times during Thomas’ first year to join his junior colleague. Thomas was an independent and influential voice from the beginning.
He maintained that voice whether it meant dissenting or issuing a separate opinion from the majority to clarify the Constitution’s original meaning.
In United States v. Lopez (1995) and United States v. Morrison (2000), the court struck down brazenly overreaching assertions of Congress’ power to regulate interstate commerce, and Thomas wrote concurring opinions to point out how far the court’s jurisprudence had strayed from the original understanding of the commerce clause. When the court upheld the power to regulate locally grown marijuana in Gonzales v. Raich (2005) under the commerce clause, he dissented.
For Thomas, whatever he thinks of the underlying policy is beside the point. The Constitution is paramount. If that means voting to overturn a law he considers good policy, upholding a law that is bad policy, or freeing or decreasing the sentence of an unpopular criminal defendant, so be it. That is how a principled judge operates.
His opinions dish out straight, unadulterated Constitution, and no justice has been more willing to argue for the overturning of judicial precedents that are inconsistent with it. He understands that the court’s precedents should not be privileged over the text of the Constitution.
Many of Thomas’ opinions reflect his commitment to the three-part structure of the federal government and the separation of powers. That meant boldly calling for the court in 2015 to revisit a line of precedents that gave too much discretion to administrative agencies, which had become a virtual fourth branch of government unaccountable to the people.