Clarence Thomas-- The Most Important Justice? (long & shameless)

[Tom Grey]

Clarence Thomas's views on the Declaration of Independence were indeed an
issue in his confirmation hearings. I know because I testified on that
issue, and just I went back and dug out my own oral testimony on the point.
These remarks were preceded by a historical and structural argument that it
was appropriate for the Senate to take the nominee's substantive views and
their likely effect on the outcomes he would reach strongly into account in
carrying out its function of advice and consent. For what it's worth...


     Now I am going to move along to the question of natural law. Senator
Leahy said a lot of people were asking him about it in Vermont over the
weekend, and a lot of people have been asking me as a law professor: what
is this natural law business that they are talking about in the Thomas
hearings?

     I don't think the concept is quite as arcane as some have tried to
make it seem. In a broad sense, for a judge to follow natural law is simply
to do justice, and there is nothing wrong with the idea that judges are
there to do justice while they apply law in deciding cases. If that's all
it means, natural law is an idea that I think most senators would endorse.
I would certainly endorse it.

     In this broad sense, natural law simply means the practical
application of human reason to difficult questions of right and wrong --
the application, I would add, in all humility, given what we know about the
limitations of human reason.

     Let me say what I think has frightened some Americans about the idea
that Judge Thomas will be a judge who will apply natural law in
constitutional adjudication. I will come back in a moment to his statement
that he does not plan to do so.

     What has frightened people comes from another approach to natural law
that lurks in the background. This other approach to natural law is not
necessarily a bad thing when an individual uses it in making personal
decisions about right and wrong. But, in contrast to the broad notion of
natural law as attempting to do justice by applying reason, this approach
does seem inconsistent with the attitude toward deciding cases we expect
from our judges.

     This is the approach that we see in Judge Thomas' repeated references,
in speeches and articles, to self-evident truths. Now the Declaration of
Independence does declare certain truths to be self-evident, of course, and
in some sense, indeed, it is perhaps self-evident that people have human
rights, including the rights of life, liberty, and the pursuit of
happiness.

     But I think it's fair to say that no lawsuit that ever comes before
the Supreme Court -- or perhaps any other court -- simply involves the
application of self-evident truths. The answers in the cases judges have to
decide can't be deduced simply and dogmatically from clear, self-evident
moral premises.

     It's the attitude that natural law is something simple and
self-evident that frightens people when it shows up in some of Judge
Thomas' speeches and writings, the speeches he gave before he went on the
bench. This attitude says, first, that natural law is God's law. There is,
of course, nothing wrong with that, taken by itself. At the same time,
though, natural law is also said to be, as Judge Thomas puts it in a number
of places, "a science of the rights of man." I quote from the end of his
article in the Harvard Journal of Law and Public Policy: "Can this nation
possibly go forward without a science of the rights of man?"

     "A science of the rights of man"! Now I don't know what that science
is. I don't have access to any such science. I don't think most Americans
believe they have any access to any "science of the rights of man." They
may believe there are rights of man, they may even be convinced they
personally know what those rights are. But I think they regard their
beliefs as essentially matters of commitment, of personal belief -- not as
matters for proof, not as scientific truths.

     The point is that belief in this kind of natural law -- a combination
of God's law and scientific truth -- gives great and indeed excessive
confidence to a person whose views he thinks have this status. Such a
person says: There is a natural right to life or liberty; the Declaration
of Independence tells us so. The right to life or the right to liberty
means X -- whatever this person believes strongly. It is totally clear to
this person what these rights are. They are God's truth. They are the
higher law. They are the brooding omnipresence in the sky.

     It is this attitude, brought to the judiciary, which I think is
inappropriate, and which seems to me frightening when joined to the actual
views on public issues, constitutional issues no less, that we know Judge
Thomas has already expressed in his writings.

     Now Judge Thomas has said to this committee that in fact he will not
apply natural law to constitutional adjudication -- or so some people
think. But if you actually go back and look at what he said during these
hearings on this question, you will find he did not quite say that. He did
not say that natural law is for him simply a matter of philosophical musing
or political theory.

     What he did say in his testimony, several times, is that he would not
directly apply natural law. He would, however, regard natural law as the
background for his decisions on questions of what is life, liberty, and
property.

     As he put it in his Harvard article, when discussing Justice Harlan's
dissent in Plessy v. Ferguson: "Justice Harlan's reliance on political
principles was implicit rather than explicit, as is generally appropriate
for Supreme Court opinions." Implicit rather than explicit -- this is what
he said before he became a judge, and I think this helps explain what he
meant when he said here that he does not believe in appealing "directly" to
natural law.

     He means that he does not think natural law can overrule the
Constitution itself. However, he clearly does believe that natural law --
meaning of course his convictions about the self-evident content of natural
law -- should inform the construction of the broad, majestic phrases of the
Constitution, those guaranteeing liberty, equal protection, protecting the
privileges and immunities of citizens, and the like.

     And we know what those convictions are. My predecessors on this panel
have spoken about them. The Lehrman speech provides the most striking
example. Remember what Judge Thomas said about that speech -- that it was a
splendid example of applying natural law to a constitutional question. What
Lewis Lehrman did was to go straight from a natural human right to life to
the right of every fetus to absolute legal protection from the moment of
conception.

     Translating this view into constitutional doctrine would mean
something more radical than any nominee for the Supreme Court has
heretofore proposed -- something more radical than Judge Bork proposed, and
he was rejected by the Senate.

     Basically, Judge Thomas' kind of "implicit" or "indirect" or
"background" use of natural law is all anyone needs to give him full
freedom in adjudicating cases -- anyone, that is, who holds sufficiently
firm, simple, dogmatic convictions about the content and method of natural
law reasoning. His formulation leaves him all the room he needs to
translate his most deeply held personal convictions into the law of the
land.

     Judge Thomas' own deep personal convictions include much of the agenda
of the far right portion of the American political spectrum. I think it
would be a great mistake -- I think it would be a tragedy -- if the Senate
confirmed someone who held those views, and who has strongly implied his
intention to implement those views as a judge, to be a justice of the
Supreme Court.



Tom Grey
Stanford Law School
tgrey at law.stanford.edu