Page 20 - Pierce County Lawyer - March April 2025

the enigma of Clarence Thomas, so I bumped it up to the top of
the queue. This author is a poli-sci professor who writes from a
pronounced leftist perspective, and his book will be the subject
in Part 2.
First, I wanted to read something less academic and more
ideologically sympathetic to Thomas. Amazon suggested a
recent book by Amul Thapar, who is an Appellate Judge on the
Sixth Circuit. It was released in 2023 (which might be the most
fortuitous publishing date in history) and the blurbs hit all the
right notes: “Rarely told stories that show his true character”,
“Insights into the man the public doesn’t truly know”, “A
misunderstood man of the people.” Perfect!
…
Or so I thought.
The book’s opening anecdote was promising, if a little clichéd.
Thomas is walking with Sotomayor and they are waved down
by a homeless man outside the courthouse. Thomas knows
him well and the man is excited to discuss “another petition
coming” that he recently filed. The two become “immersed
in conversation,” and afterward Thomas recounts the man’s
history of troubles to Sotomayor. In addition to knowing
every courthouse employee by name, this incident is proof to
Sotomayor that Thomas really “cares about people.”
This sets the stage for the premise of the book: Thomas is
a principled man of high character and he is not deserving
of his generally poor reputation. He has suffered unfairly
over the years, not only from racism (undoubtedly true), but
from critics “cherry-picking his opinions or misrepresenting
them.” He does not “favor the rich over the poor, the strong
over the weak, and corporations over consumers.” In fact, his
jurisprudence more often “favors the ordinary people”, because
the core idea behind Originalism is “honoring the will of the
people.”
Unsurprisingly, most of the issues discussed, and the cases
chosen (but not cherry-picked!) to make this argument are
mainstays of the conservative movement. School vouchers, the
protection of private property from a covetous government,
the limits of free speech, the importance of expansive police
powers and handgun ownership for self-protection. Some of
the cases are correctly decided - when Thomas’s viewpoint
(Originalism) prevails. Some of the cases are incorrectly
decided and Thomas’s dissents are used to explain how the
court failed. One gets the impression that Thapar would like
these failed cases to be “re-examined later,” like the censorship
of violent video games.
Virtually all of these chapters are indistinguishable from
Wikipedia entries. The few stock personal descriptions of
Thomas are amusing to read now: he enjoys traveling with
Ginni in their mobile home, and he would "rather spend his
time at Walmart than cocktail parties." Otherwise, he’s hardly
present as an individual.
Two chapters offer a tiny glimpse into the character of Thomas
and what might be personally important to him. The first is a
discussion of Brumfield (2015), a minor case about exempting
the mentally disabled from the death penalty. Thomas has
always been reliably pro-execution in almost every respect—
giving wide latitude to a method’s cruelty and effectiveness;
and having little concern for the perpetrator’s mental
condition, age or even factual innocence. Notable in this case
was Thomas’s uncharacteristically emotional dissent, in which
he was personally moved by the suffering of the victim’s family
and upset that they were denied the finality of an execution.
For Thapar, this was evidence that Thomas cares deeply about
ordinary people and victims of crime. The plight of families
who do not wish death for perpetrators was not mentioned,
but perhaps they are unordinary people. Either way, unlike
Justice Blackmun before him, Thomas is highly motivated to
‘tinker with the machinery of death.’
Then, in the strangest section of any book I have ever read,
Thapar discusses the West Point and Cosby rape cases. Both
cases were denied certiorari and involved distinct legal issues.
But from Thomas’s brief dissents, and without the slightest
hint of irony, Thapar suggests that the underlying subject of
these cases—in which powerful people “embarrass, harass,
intimidate and shame" and “besmirch the character of ”
rape and sexual assault victims - was personally appalling to
Thomas, and further proof that he cares for women and the
vulnerable. Almost any reader interested in this book would
have to know the basic facts and personal history of Clarence
Thomas that makes that statement…nearly insane.
…
This is the central incoherence and failure of the book. It
presents itself as a defense of a man who has been unfairly
maligned as ‘cruel’, ‘dumb’, and ‘unjust’ because of his
‘Originalist opinions’ that people just don’t understand.
But, there are (regrettably) innumerable practitioners and
champions of Originalism, including half of Thomas’s present
colleagues. Originalism is obviously not the source, nor cause,
of his poor reputation.
Nevertheless, Thapar mounts the defense, and it reaches
extremes. In Thapar’s formulation, Originalism becomes
more than just a methodology or theory of interpretation. It’s
quickly transformed into Pure Science. In each case before
him, Thomas is simply working from “first principles” to reach
a conclusion that could have no other valid result. Thomas’s
use of Originalism to decide a case is an impersonal exercise
of formal logic, as rigorous and irrefutable as a mathematical
proof.
By the end of the book, Thomas’ Originalism begins to exceed
the limits and bounds of nature itself. It is endowed with
metaphysical properties and nears divine revelation. Thomas
is its highest priest and his personal motivations, flaws,
limitations, biases, or financial liabilities are quite literally
immaterial. Originalist rulings are compassionate and true
from their conception, because they are Originalist, whether
the public understands that or not.
…
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