The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him
By Amul Thapar
(Regnery Gateway, 304 pages, $33)
Cases decided by the United States Supreme Court frequently involve individuals who present compelling stories that get buried in the legality of the court’s rulings. Those decisions can turn on standing, ripeness, whether there is a private right of action, or the standard of review. In such cases, the personal story gets left behind.
In The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him, Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit turns the story around. Thapar writes for two reasons: “to give a face and a voice to those whose lives have been changed forever by the many cases that have come before the Supreme Court,” and “to show how Justice Thomas champions our Constitution and the people it protects.” In several of the cases that Thapar highlights, the litigants lost, but Thomas addressed their arguments in a compelling way.
In Kelo v. City of New London, for example, the city of New London, Connecticut, condemned Susette Kelo’s house so that a Pfizer pharmaceutical facility could be built on her and her neighbors’ property. The city reasoned that condemning the neighborhood and evicting the residents would serve the common good by providing jobs and tax revenue. But Pfizer wanted more; it wanted 90 acres for “a future luxurious hotel, office space, high-end housing and stores, and a top-notch conference center.” That would replace a blue-collar neighborhood that was not blighted and where people, including Kelo, owned their own homes, sometimes for generations. (READ MORE: In Praise of Clarence Thomas)
The Supreme Court rejected Kelo’s contention that the Fifth Amendment’s prohibition of takings other than for public use meant precisely that, not for public benefit. The majority found a “public use” in the city’s “carefully considered development plan.” Thomas joined the dissent, written by Justice Sandra Day O’Connor, and also wrote separately. In his separate dissent, Thomas pointed out that “public use” means used by the public, not some public benefit from an alternate private use. He observed that, while the Constitution protects the people in their homes, their homes were no longer safe from the government. He also noted how, during the 1950s, municipal governments in Baltimore, Maryland, and St. Paul, Minnesota, pursued economic development that destroyed “predominantly minority communities.”
In the end, after eight years, Pfizer walked away from New London, leaving a “barren” landscape, “home only to rubble, feral cats, and weeds,” leaving both Suzette Kelo and the City of New London worse off.
Angel Raich was another losing party. Bedeviled by back and body pain, Raich finally turned to medical marijuana, which worked. The federal government, though, sued to stop the sales of medical marijuana from the co-op that Raich used. When another sufferer started growing marijuana plants, something that California law allowed, a fight between the federal and state governments followed, in which the feds prevailed.
Raich then filed suit in federal court. While the Constitution allows Congress to regulate “interstate commerce,” the Supreme Court extended the reach of that power in its 1942 decision in Wickard v. Filburn. There, the court held that, even though Roscoe Filburn grew wheat for use on his own farm, his action fell within the scope of the interstate commerce power because the wheat Filburn grew did not have to be bought in the interstate market. The federal district court ruled against Raich applying Wickard, but the 9thCircuit reversed. (RELATED: The Vicious Media Attack Against Clarence Thomas)
The Supreme Court equated the growing of marijuana with Filburn’s growing of wheat, declining to revisit Wickard v. Filburn. Thomas dissented, concluding that no “interstate commerce” was involved. Instead, a state had exercised its power “to decide for [itself] how to safeguard the heath and welfare of [its] citizens.” He also disagreed with Justice Antonin Scalia’s expansive view of the commerce clause’s power, observing that “‘some conceivable’ connection to interstate commerce is not enough.”
Other chapters discuss decisions on school vouchers (Zelman v. Simmons-Harris) and affirmative action in higher education (Grutter v. Bollinger). In each of his separate opinions, Thomas invoked the words of Frederick Douglass. In Zelman, where the court rejected a challenge to Ohio’s school-voucher program, Thomas began by quoting Douglass, who had said, “Education … means emancipation.” The school-voucher program offered the parents of minority children a chance to give their children an opportunity for emancipation. Thomas likewise gave Douglass the last word: “No greater benefit can be bestowed upon a long benighted people, than giving to them, as we are here earnestly this day endeavoring to do, the means of an education.”
The discussion of the cases illustrates the way in which Thomas relates to people, including the litigants. So, too, do two anecdotes. As Justice Sonia Sotomayor has noted, “Justice Thomas is the one justice in the building who literally knows every employee’s name, every one of them.” And he befriended a homeless man suffering from drug addiction and convinced him to get clean, thereby allowing the man to reconcile with his mother.
As Thapar writes, he sought “to bring the stories to life and help [us] to better appreciate not only Justice Thomas, but also originalism.” Thapar reveals what originalism offers to all of us.