My good friend from the Northwestern Pritzker School of Law faculty Steve Lubet has very politely, but firmly taken issue with my recent post on this Blog about Justice Clarence Thomas. Steve does "not question [my] assessment of Thomas's exceptional intellect." But he does question my assertion that Justice Thomas is the best of the 116 justices to have sat on the Supreme Court. I want to begin by defending that claim before turning to the ethics issues that Steve is troubled by.
First, I am not alone in thinking that Clarence Thomas is the best of the 116 Justices to ever serve on the Supreme Court. I am one of the three co-founders and the 40 year Co-Chairman of the Federalist Society's Board of Directors. The Society has 70,000 members nationwide, chapters at every law school in the country, lawyers chapters in every major city in the country, and a substantial presence on the federal judiciary. After forty years of attending thousands of Federalist Society gatherings, I have a pretty good sense of what Federalist Society members think. They adored the late Justice Antonin Scalia, but after Clarence Thomas had been on the Supreme Court for about ten years—a frequent parlor game got started when Federalists got together. They would ask themselves who was right in those cases in which Justices Scalia and Thomas disagreed. The nearly unanimous answer was that Justice Thomas was right.
While Justice Scalia travelled all over the world and the United States giving speeches praising originalism and extolling its virtues, Justice Thomas worked in his office writing very consistent and powerful originalist opinions that started driving the Supreme Court in his direction. Some people said sadly as a joke that Justice Thomas had the courage of Justice Scalia's opinions. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1988-1989) (arguing for faint hearted originalism that did not overturn major precedents). All too often, as in Gonzales v. Raich, 545 U.S. 1 (2005) a case about whether the federal government had power under the Commerce and Necessary and Proper Clauses, to prosecute a cancer patient for growing three medical marijuana plants in her kitchen, Justice Scalia was in the liberal majority for national power and Justice Thomas was in dissent along with Chief Justice Rehnquist and Justice Sandra Day O'Connor.
