Clarence Thomas-- The Most Important Justice?

[Stephen Siegel]

I am not sure if my post here misses the point of some of the comments on
this thread, or if it is in the category of noticing that the new emperor
is missing some clothes.  But ... for Justice Thomas to draw from the
Declaration of Independence, or be influenced by Douglass is one thing,
but to do that an be an originalist is past understanding.  I am unaware
of any legal actor in the founding era thought the Declaration binding
law beyond creating independence.  In particular, no court or lawyer
in court ever argued that the Declaration's equality principle to free
the slaves or require that free blacks (about 1.5 per cent of the population)
be treated equally with whites.  Even Lincoln, four score and seven after
the founding, described the Declaration as formulating inspiring political
principles that over time it would be appropriate to move the country
towards, but not as creating any binding law.

This isn't to say that Thomas isn't or won't be an important Justice,
that's an empirical matter.  But it is to point out that his commitment to
the Declaration in Adarand is somewhat adventitious.

Stephen Siegel
DePaul University College of Law