Clarence Thomas and the amendment of doom

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonio Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work.

Toobin is less interested in exploring why liberal America has been so blind for so long to the force of Clarence Thomas’ intellect than in understanding just what Thomas has achieved in his lonely trek across the wastes of Mordor. And what he finds is that Thomas has been pioneering the techniques and the ideas that could not only lead to the court rejecting all or part of President Obama’s health legislation; the ideas and strategies Thomas has developed could conceivably topple the constitutionality of the post New Deal state…

The prospect of a serious judicial rehabilitation of the Tenth Amendment is real, though perhaps not immediate. And change this sweeping is unlikely to come simply because a relative handful of judges and lawyers change their minds on an issue of constitutional interpretation. A broader change would need to take place in society so that the idea of transferring more activities from Washington to the states appeals to public opinion to the point where presidents appoint judges who share this philosophy, the Senate confirms them, and the new majority begins to set a new direction for the law.

Arguably, we are nearing a zone where something like that could happen.