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High praise for the Supreme Court’s newest justice, Ketanji Brown Jackson, poured in after her first term came to a close this month.
As the high court’s first Black female justice, Jackson made history by not only authoring a record number of solo dissenting opinions but also speaking in oral arguments more than any first-term justice in history – and during a term that dealt with deep ideological issues like abortion, affirmative action and voting rights.
But some experts say that while the newest justice demonstrated sharp legal acumen and capability, it’s disingenuous to credit her while ignoring – and sometimes even disparaging – what a conservative Black justice, Clarence Thomas, has contributed for decades.
Elizabeth Wydra, president of the Constitutional Accountability Center, told the New York Times that Jackson’s tenure could mark “a new chapter for the court, where we see a real, sustained challenge to the conservative originalism of the current supermajority, equally rooted in text and history.”
Supreme Court Justice Clarence Thomas attends a ceremony on the South Lawn of the White House on Oct. 26, 2020. (Al Drago / Bloomberg via Getty Images)
But critics said that while Jackson’s output is impressive, her jurisprudence so far rings hollow.
David B. Rivkin Jr., an appellate and constitutional law attorney and former White House counsel and Justice Department counsel, said Jackson’s “views are fundamentally stereotypical liberal.”
“When it comes to the three liberal justices, I don’t see much difference in their judicial philosophy. I don’t see any difference between Justice Jackson’s positions and those of Justice Sotomayor or Justice Kagan. They virtually never part company, and their decisions are driven largely by the result-oriented philosophy – do they like what the decision is; it’s not about how you got there. And a result-oriented judging has nothing to do with the law,” Rivkin told Fox News Digital.
Conversely, Rivkin said Thomas “marches to the beat of his own drum” – an aspect that’s largely overlooked or misconstrued by Thomas’ critics.
“The notion that the six conservative justices march in lockstep is absurd,” Rivkin said. There are distinctive differences not only in how they decide specific cases but in their judicial philosophy. There are numerous permutations of originalism and textualism,” Rivkin said.
JUSTICE KETANJI BROWN JACKSON’S DISSENTS ARE BETTER ‘CLICKBAIT’ THAN LEGAL SCHOLARSHIP, EXPERTS SAY
Justice Clarence Thomas is shown at the swearing-in ceremony of colleague Amy Coney Barrett. (Jonathan Newton / Washington Post via Getty Images / File)
“Justice Thomas never fails to write exactly what he thinks. He’s not very much driven by stare decisis (i.e., to honor/adhere to precedent) and is willing to discard past decisions that he thinks are wrong.”
Megan Wold, partner at Cooper & Kirk and former clerk of Justice Samuel Alito, echoed the sentiment that Thomas has a proven record of adhering to “first principles,” even if that means doing so alone.
“Justice Thomas is known for his first principles [of] jurisprudence. He asks not just what a doctrine is now but how it came to be that way,” Wold said. “He understands that, especially where constitutional questions are concerned, it is important to get the law right because the Constitution cannot be easily changed.”
Jackson and Thomas went toe-to-toe in the Students for Fair Admissions vs. Harvard case, in which the court’s majority said admissions policies that consider race as a factor is unconstitutional – a practice colloquially known as “affirmative action.”
Jackson dissented along with Sotomayor and Kagan, calling the decision a “tragedy for us all.”
“No one benefits from ignorance. Although formal race linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better,” she wrote.
The members of the Supreme Court are, from left, Amy Coney Barrett, Neil Gorsuch, Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts Jr., Ketanji Brown Jackson, Samuel Alito Jr., Elena Kagan and Brett Kavanaugh. (Collection of the Supreme Court of the United States via Getty Images / File)
Thomas delivered a separate concurring opinion in the majority, ripping apart Jackson’s dissent for its “race-infused world view” that “falls flat at each step.”
“Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything – good or bad – that happens in their lives,” he wrote.
Thomas said he sought “to offer an originalist defense of the colorblind Constitution” and to “clarify that all forms of discrimination based on race – including so-called affirmative action – are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination.”
Since his nomination in 1991, Thomas has been the recipient of a litany of race-tinged aggression. He described his own confirmation hearing as a “high-tech lynching” after unsubstantiated claims of assault were used by Democrat senators to try and sink his nomination.
Earlier this month, Minnesota Democrat Attorney General Keith Ellison went on a racially charged rant in which he compared Thomas to a house slave character in Quentin Tarantino’s 2012 film “Django Unchained.”
In February, Georgia state Sen. Emanuel Jones used “racially charged language” to characterize Thomas, including calling him an ‘‘Uncle Tom’’ figure.
Supreme Court Justice Clarence Thomas and Chief Justice John Roberts pose for their official portrait on Oct. 7, 2022, in Washington, D.C. (Alex Wong / Getty Images)
MSNBC host Joy Reid for years has “cast aspersions on Justice Thomas in a racially offensive manner … in light of her disagreement with his jurisprudence,” a group of bipartisan senators recognized and condemned recently.
“What they do is engage in … vitriolic attacks, and pretty much everything they write and say is politically driven. People who don’t like the substance of his decisions, they put out calumny against Thomas. That’s unfortunately the world we live in,” Rivkin said.
Federal Judge Amul Thapar, author of a new book, “The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him,” said Thomas’ critics who demonize him with racist attacks misrepresent his opinions.
“By cherry-picking his opinions or misrepresenting them, Justice Thomas’s critics claim that his originalism favors the rich over the poor, the strong over the weak, and corporations over consumers. They have called Justice Thomas ‘the cruelest Justice,’ ‘stupid’ and even ‘an Uncle Tom,’ a traitor to his race.”
But Thapar argues that Thomas’s originalism “more often favors the ordinary people who come before the Court – because the core idea behind originalism is honoring the will of the people.”
“For years, he famously sat silent on the bench because he wanted to respect the advocates’ limited time to present their arguments. But Justice Thomas speaks forcefully in his opinions – not only about the original meaning of the law, but also about those who suffer from its misapplication,” Thapar writes.
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“Throughout his decades on the Court, Justice Thomas has repeatedly pointed out that when we actually follow the original meaning of the Constitution, the weak and the politically powerless stand to benefit the most.”
An author at the publication Slate recently wrote that Jackson has “perfected the art of originalism jujitsu.”
“With her first term wrapped up, it’s safe to say that Jackson really does have zero interest in the ‘living Constitution’ sometimes associated with liberal judging. In place of lofty odes to the majestic generalities of the Constitution, the justice has consistently favored its original meaning and a statute’s plain text over other considerations,” the author wrote.
Wold argues that Jackson is now forced to play on the originalism field because of the years of groundwork by Thomas and the late Justice Antonin Scalia.
“It is impossible to engage in modern constitutional debate without discussing the original public meaning of the Constitution,” Wold said.
In his book, Thapar notes an observation of Justice Thomas that “Finding the right answer is often the least difficult problem,” rather, it’s “[h]aving the courage to assert that answer and stand firm in the face of the constant winds of protest and criticism [that’s] often much more difficult.”
“No one knows this better than Justice Thomas,” Thapar writes. “Nonetheless, he finds the right answer and then sticks to it.”
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