As Americans call on lawmakers to take action in response to the most recent spate of mass killings, it isn’t just the National Rifle Association and its bought-and-paid-for legislators standing in the way. It’s also a federal judiciary that is being packed at a record pace with judges who share Supreme Court Justice Clarence Thomas’s once-lonely radicalism on the Second Amendment—and on decades of constitutional law that undergird much of what the federal government now does.
“Clarence Thomas and the Lost Constitution,” a fawning book by conservative author Myron Magnet, celebrates that “a significant number of key administration officials and federal judges” are former Thomas clerks, “including 20 percent of the appellate judges President Trump has appointed.” (And that was written before Neomi Rao—described by Magnet as “the Trump administration’s lion-hearted scourge of administrative-state regulations”—took her seat on the Court of Appeals for the District of Columbia Circuit.)
At a Manhattan Institute event in May, when the book was published, Magnet called Thomas “today’s most effective counter-cultural force…a quiet army in himself.” For years, Thomas has been staking out positions at the far right of the court in dissenting and concurring opinions joined by few if any of his conservative colleagues. Thomas has laid out a “road map” to return the U.S. to the “Framers’ Constitution,” as Magnet has said in interviews promoting his book. And now, Trump’s judges have “put the troops in place to carry it out.”
Among those “troops” are judges like James Ho, a young conservative firebrand now serving on the Fifth Circuit Court of Appeals whose opinions denouncing big government read like right-wing op-eds and echo Thomas’s rhetoric about the Second Amendment being treated as a “second-class right.”
When it comes to guns, Thomas has long been an outlier, repeatedly criticizing his colleagues for declining to take up cases expanding on the Court’s ruling in Heller that declared for the first time that the Second Amendment protects individual gun ownership and that the amendment’s “well-regulated militia” phrase was essentially meaningless.
In the Heller decision, the late Justice Antonin Scalia wrote, “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” But in a 2015 dissent from the Supreme Court’s decision not to review an assault weapons ban that was upheld by the 7th Circuit, Thomas argued specifically that AR-style assault weapons cannot be banned and that it was wrong for the courts “to delegate to states and localities the power to decide which firearms people may possess.”
As The New York Times’ Linda Greenhouse has noted, Thomas and his colleague Samuel Alito have complained that the Court is treating the right to bear arms as a “second-class” or “disfavored” right—language that is now being echoed by other Trump-nominated judges like Ho, who has written that the right to bear arms must not give way to “hoplophobia,” a term coined to mock proponents of gun control.
Magnet’s book, “Clarence Thomas and the Lost Constitution,” is a virtual love letter to Thomas, for whom Magnet has “unlimited esteem” and of whom Magnet writes, “it’s not fanciful to think of the justice as the Founders’ grandson” – a reference to biographer Richard Brookhiser having called Abraham Lincoln the Founders’ son.
A blurb by the Federalist Society’s Leonard Leo, an architect of the movement to achieve right-wing ideological domination of the federal judiciary, adorns the book’s back cover. During the 2016 presidential campaign, candidate Donald Trump famously outsourced the vetting of his potential Supreme Court picks to Leo and like-minded colleagues at the Heritage Foundation, and since taking office, Trump has thrilled Leo and Magnet with his judicial nominees at all levels.
Magnet, editor-at-large of the conservative Manhattan Institute’s City Journal, writes that Thomas treats his clerks like family and nurtures their careers. “He’s created a whole generation of conservative legal thinkers, trained in the most rigorous way to read the Constitution the way it was written,” he writes. “I think that it’s not too much for him to compare himself to John Marshall.”
This is no newfound fandom. More than a decade ago, the City Journal was praising Thomas as a “muscular proponent of states’ rights.” Magnet is convinced that 100 years from now, Thomas will be seen as “the most consequential jurist of his time, more consequential than Justice Scalia, his dear friend.”
Scalia once called himself a “faint-hearted” originalist in comparison to Thomas’ eagerness to overturn precedent. But, as a Manhattan Institute press release in May put it, “The Court now seems set to move down the trail [Thomas] blazed.” Thomas has more company in the far-right wing of the Supreme Court. And, in addition to Ho and Rao, former Thomas clerks now on the federal appeals court, just one level below the high court, include Allison Jones Rushing (4th Circuit), David Stras (8th), Eric Miller (9th), Allison Eid (10th), and Greg Katsas (D.C. Circuit).
The ‘Reclamation’ Project
Magnet uses Thomas’ writings to trace their shared beliefs about how the U.S. Constitution was “lost” and how Thomas is pointing the way toward “constitutional reclamation.” Among the milestones Magnet cites are Woodrow Wilson’s idea of the “living Constitution,” and the Supreme Court giving in to Franklin Delano Roosevelt’s efforts to create “an unprecedented regulatory state,” which Magnet sees as “tyranny”:
Wilson concocted and legitimized the magic elixir of judicial constitution-making and rule by administrative agencies, but Franklin D. Roosevelt employed it like an alchemist to transmute the American political system into a full-blown administrative state that resembled George III’s system of rulers and subjects as much as it did George Washington’s government.
As Magnet notes, Thomas wants the Supreme Court to abandon 80 years of rulings on the Commerce Clause, returning the U.S. to a pre-New Deal interpretation of the Constitution.
The New Deal, Thomas argues, marked an inflection point in government’s subversion of personal responsibility. FDR’s promise of freedom from want, in particular, redefined freedom from “a right to self-provision and self-determination” to “a right to make demands on government and society for one’s well-being and happiness,” for housing, a minimum income, and other such benefits.
Casualties of a War on the Commerce Clause
Writing as a People For the American Way Foundation senior fellow in 2011, Jamie Raskin (who is now a member of Congress) asserted that “a powerful case can be made that the most important constitutional instrument for social progress in our history has been the Commerce Clause.” Raskin noted that a robust interpretation of the Commerce Cause “became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.” Thomas’ aggressively regressive Commerce Clause interpretation would put millions of Americans’ well-being at risk by giving more power to a “corporate-dominated conservatism that jealously guards private economic power and resists democratic public control over our economic life.”
Undoing Progressive Reforms
Thomas is no longer such a lonely voice for a far-right effort to reclaim a “lost” pre-New Deal view of the Constitution. Religious Right groups and right-wing legal allies are hoping that Trump-nominated judges will adopt their belief that much of what the federal government now does is unconstitutional and that there is no legitimate federal role in addressing education, poverty, or health care. The Supreme Court’s conservatives have already gutted campaign finance laws and the Voting Rights Act, and given state legislatures free rein to engage in the most aggressively unfair partisan gerrymandering.
Conservative activists—and officials from the White House and Republican leadership offices in Congress—have expressed their desire to reverse 80 years of federal court rulings in order to do away with a constitutional justification for New Deal and Great Society programs; some say explicitly that they want to turn the clock back even further to undo progressive reforms of the early 20th Century; and they want to dismantle the “administrative state.”
This is no academic exercise. Right-wing activists believe that Trump and Senate Majority Leader Mitch McConnell, by filling the courts with Federalist Society-approved judges, will allow them to begin doing all these things, in addition to reversing Roe, Obergefell, and decades of rulings on church-state separation. That’s what Magnet means by Thomas now having the troops in place to follow the road map he has laid out in his dissents and concurring opinions. “Like such other great dissenters … he has blazed a trail to liberty that future justices can follow. And he is patient in waiting for the Court to catch up.”
One of the most remarkable characteristics of the Trump nominees who have been confirmed to lifetime federal judgeships is that many of them have declined to affirm that Brown v. Board of Education, the landmark decision against legally enforced racial segregation of public schools, was rightly decided. Magnet complains that Brown “floated utterly free from the Constitution, which gives the federal government no authority over education of any kind.” Thomas has supported the outcome of Brown, but has said the Court should not have relied on social science data about the harms caused by enforced segregation but on the Equal Protection Clause of the 14thAmendment. Thomas interprets the Constitution to prohibit any form of affirmative action—or any government action taken to redress the impact of prior discrimination beyond ending the discrimination itself. The Center for American Progress once called him “the anti-Thurgood Marshall” for his consistently narrow interpretations of civil rights laws and his voting with the court’s other conservatives to gut the Voting Rights Act in 2013’s Shelby decision.
The Thomas Constitution: State Religion, Yes; Privacy, No
Among Thomas’ other radical arguments is the suggestion that the First Amendment to the Constitution does not prevent states from establishing their own official religions. In a 2014 opinion he wrote that the First Amendment “probably prohibits Congress from establishing a national religion.” Probably. He affirmed his outlier positions earlier this year, when he argued in a concurring opinion that state governments and localities are not bound by the Establishment Clause—the part of the First Amendment that forbids Congress from making laws “respecting an establishment of religion.”
Thomas says that campaign finance laws and regulations on commercial speech undermine the First Amendment, but he also argues that the Constitution does not protect students’ right to free speech in public schools—or any free speech rights for prisoners.
In a dissent in a case about the privacy of cell-phone records—in which Chief Justice John Roberts joined a 5-4 majority ruling that the acquisition of cell-phone local data by law enforcement without a warrant was an impermissibly intrusive search—Thomas suggested that the court should abandon its jurisprudence around a “reasonable expectation of privacy” given that the word “privacy” is not included in the text of the Fourth Amendment.
The ‘Deep State’ and ‘Race-Victimology’
In addition to his adoration for Thomas, Magnet’s book reveals his embrace of other right-wing obsessions, including former President Barack Obama and the supposed “deep state” plot against Trump. He slams Obama for the “tendentiousness of his moral vision and the void at the core of his identity, emptier than most modern politicians.” Magnet claims that “race-victimology” is “central” to Obama’s “sense of self.” He charges that Obama gave “scarcely a thought” to the “police officers assassinated by deranged blacks inflamed by his anti-cop demagogy.”
Magnet makes dramatic claims about the impact of the administrative state, writing, “Absolutism—soft perhaps, but absolutism nonetheless—has replaced a democratic republic.” And he ventures into full-blown “deep state” conspiracies related to Trump:
And worst of all, top officials of our Federal Bureau of Investigation and Justice Department seem to have brought to bear the incalculable power of the state to try to rig a presidential election and sabotage the winner they don’t like—and they have evaded accounting for their behavior to the people’s elected representatives for more than a year, as I write, citing their so-called higher loyalty. Here the administrative state morphs into something like the secret police of a banana republic or a totalitarian tyranny, flagrantly unconstitutional and un-American.
In Search of a ‘Lost’ Constitution, Thomas’ Troops are Looking Back and Marching Forward
In 1995, libertarian-leaning federal judge Douglas Ginsburg coined the term “Constitution in Exile” to refer to the Constitution as it was interpreted before the New Deal, and the term was picked up on by critics of the right-wing judicial movement. For years, some conservative legal advocates disingenuously denied the existence of a “Constitution in Exile” movement, portraying it as a sort of conspiracy theory of the left. For example, a 2011 Weekly Standard column said dismissively, “For years, liberal legal commentators have been fond of accusing conservatives of pining for the restoration of the ‘Constitution in Exile’ — a return to pre-FDR conservative constitutional jurisprudence that would (by their telling) roll back the New Deal, the Great Society, and more or less every other major liberal legislative triumph of the twentieth century.” The author said that “few if any conservative legal thinkers” had actually used the phrase.
Meanwhile, proponents of that view of the Constitution like Thomas have been busy. And now, with Trump in the White House, the Federalist Society vetting his judges, and Senate Republicans rushing to push even the most unqualified and undeserving nominees onto the federal bench, conservative activists and politicians are suddenly a lot more willing to acknowledge their ambitious goals of dismantling administrative agencies that regulate corporate behavior and protect individuals and communities, or repealing the New Deal, or undoing 115 years of progressive reforms–though many conservative politicians haven’t been honest with their constituents that what they are seeking would mean the end of Social Security and Medicare and federal programs that protect workers, consumer, and communities.
It is not just the conservative Magnet who sees Thomas’ jurisprudence as the direction toward which a conservative judiciary is heading. Last July, Ian Millhiser at ThinkProgress called Thomas “the most important legal thinker in America,” warning that Thomas has “reshaped the way conservatives think about the law.” That was followed by a New York Times op-ed by Linda Greenhouse that examined Thomas’ “obsession with the past” while asking whether he represents the court’s future. Greenhouse wrote that Thomas’ opinions “paint an extraordinary picture of a judge at war not only with modernity but with the entire project of constitutional law.”
“Clarence Thomas and the Lost Constitution,” which has been getting mostly positive attention in conservative media over the past few months, may be essentially a fanboy project, but it provides a service. It highlights the radicalism of Thomas, the Court’s most enthusiastic “originalist,” and the consequences of the Trump-McConnell project to fill the federal courts with like-minded ideologues.