Monday, March 16, 2015

Clarence Thomas, the Eccentric

By Cass R. Sunstein

U.S. Supreme Court justices may be wise, obtuse, fair or political, but we don't ordinarily think of them as eccentric. William O. Douglas, who was on the court in the middle of the 20th century, has long counted as the only unambiguously eccentric justice. But now, as an opinion on separation of powers issued last week makes clear, Justice Clarence Thomas has joined him.

A judge can be counted as eccentric if he holds positions that don't fit with established law and that depart, frequently and significantly, from those that prevail within the court. A judge who is eccentric is not necessarily wrong, and eccentricity can be appealing. To many liberals, and especially to many law students, Justice Douglas seemed bold and admirably rebellious, in part because he was not bound by precedents.

As early as 1949, Douglas insisted that the “search for a static security -- in the law or elsewhere -- is misguided.” In his view, “security can only be achieved through constant change, through the wise discarding of old ideas that have outlived their usefulness, and through the adapting of others to current facts.” In his 36 years on the Court, he practiced what he preached.

Douglas believed that the First Amendment forbids any regulation of sexually explicit speech, including the most obscene, and that it essentially obliterates the law of libel (at least when public issues are being discussed). A lifelong lover of nature, he famously argued that trees, streams and other inanimate objects should have standing to bring suit in federal court. He also insisted on an expansive right of privacy, including “freedom to wander and to loaf” and broad “control over the development of one’s intellect, interests, tastes and personality.”

Justice Thomas is also a fan of liberty, but ideologically he stands at the opposite pole from Douglas, and he interprets the Constitution in a radically different way. More than any justice in history, he is an originalist, insisting that the Constitution’s provisions should be interpreted to mean what they meant at the time they were ratified.

Read the rest here.


  1. How extraordinary, that an attempt to understand what a person meant when they wrote something, and more importantly the underlying principles that guided them when they wrote it, is eccentric!

  2. Sunstein states: "A judge can be counted as eccentric if he holds positions that don't fit with established law and that depart, frequently and significantly, from those that prevail within the court." This is law by democracy, law by mob rule or law by whoever controls the court. There are no eternal truths, no sacred rights of man, just the random urges of the man in power. Unfortunately, rather than extraordinary this is becoming an accepted rule of human behavior. See Climate Change, Obamacare, medicare, SS, Public Education, Endless War...

  3. The profound Mr. Sunstein:

    The results can be unquestionably eccentric. Last week, Thomas announced his view that Congress lacks the constitutional power to give administrative agencies (such as the Department of Health and Human Services and the Environmental Protection Agency) the authority to “formulate generally applicable rules of private conduct.” That’s radical stuff. It appears to suggest that HHS can't issue binding rules to implement the Affordable Care Act and that EPA can't issue the air quality rules that have defined its work for more than four decades.

    The eccentric Justice Thomas:

    The Constitution does not vest the Federal Government with an undifferentiated “governmental power.” Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1, “[t]he executive Power shall be vested in a President of the United States,” Art. II, §1, cl. 1, and “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1. These grants are exclusive.

  4. Cass Sunstein? Really? Somehow, I'm unable to work up much of a feeling over anything that progressive doodlebug might have to say.