Reproduced below is my contribution to an online symposium released today by the First Amendment Center entitled “Justice Thomas and the First Amendment” (see here). Symposium topics cover Thomas’s views on stare decisis (my piece), flexible constitutional tests, campaign financing, cross burning, commercial speech, sexual expression, protection of the electronic media, prisoner expression, student expression, speech codes, compelled speech, and church-state issues. The symposium also contains materials concerning Thomas’s statements about the First Amendment made during his confirmation hearings, his remarks about the First Amendment during oral arguments in the Supreme Court (see here, too), Thomas’s First Amendment voting record, and a bibliography of books and articles pertaining to his First Amendment views.

For a recent post by Jan Crawford Greenburg on Justice Thomas’s views on precedent, click here. (Hat tip: How Appealing.). Here is my contribution to the symposium on essentially the same topic:

Justice Thomas: constitutional ’stare indecisis’

Tinker? Overrule Tinker v. Des Moines Independent Community School Dist. (1969) – the formative precedent recognizing that students possess limited First Amendment rights (but rights nonetheless) in the school context? Apparently so.

In Morse v. Frederick (2007) Justice Clarence Thomas joined the majority opinion, which held that schools may restrict drug-related speech. But he also wrote a separate concurrence – one that no other justice joined. In it he explained his view that (contrary to Tinker) students simply have no speech rights while in school. In so doing, Justice Thomas cemented his reputation as the most fascinating member of the Supreme Court and the justice most open to overturning foundational constitutional doctrines.

Constitutional ‘reset button’

Justice Thomas’ willingness to hit the constitutional “reset” button and start over from scratch is not confined to Tinker, even within the field of the First Amendment, which generally is not thought of as a hotbed of doctrines ripe for overruling. That is not to say that free-speech precedent is never contested; surely it is, and it is equally in Thomas’ crosshairs.

Take campaign finance. In FEC v. Wisconsin Right to Life (WRTL) (2007), Chief Justice John Roberts’ plurality opinion held that the “electioneering communication” provisions of the federal campaign-finance laws could not be constitutionally applied to the advertisements in that case. That opinion purported to be consistent with the Court’s holding in McConnell v. FEC (2003) that the same statute was facially constitutional, though the plurality’s effort to distinguish McConnell was hard to take seriously.

By contrast, Justice Thomas (along with Justice Anthony Kennedy) joined a concurring opinion by Justice Antonin Scalia, which not only agreed with the plurality that the provisions at issue were unconstitutional as applied, but would also have reversed McConnell then and there, along with some other campaign-finance jurisprudence for good measure. In their view, a “wait-and-see approach makes no sense and finds no support in our cases,” particularly when the effect of the plurality’s opinion was all but to overrule McConnell sub silentio.

Justice Scalia’s WRTL concurrence was harsh (to both the plurality and the dissent) but at least it tracked the traditional inquiry into the deference accorded to precedent. He included an entire section devoted “to the question of stare decisis,” the venerated principle that precedents have staying power and should not be susceptible to easy reconsideration and rejection as the Court’s composition changes. The restraining force of precedent, Scalia explained in arguing for the overruling of McConnell, is lessened in the constitutional context, a field in which Congress cannot fix the Supreme Court’s mistakes (citing Glidden Co. v. Zdanok, 1962). And it was overcome in that case, the concurrence concluded, by the fact that “the McConnell regime is unworkable” and has produced “no settled body of law.”

In fairly stark contrast to McConnell (which Justice Scalia deemed more vulnerable to reconsideration because it was so recently decided), Tinker had been decided almost four decades earlier. School administrators and the federal courts had applied it in countless instances. Granted, the right conferred by Tinker had been limited over time (a point Scalia made at oral argument in Morse). See Hazelwood Sch. Dist. v. Kuhlmeier (1988); Bethel School District No. 403 v. Fraser (1986). Even so, there was no groundswell of criticism of the ruling or broad sense that the standard it announced was unworkable.

What, then, was the special consideration in Morse that Justice Thomas believed called for a departure from stare decisis? What weight did he put on the scale in favor of retaining Tinker because of its status as settled law? Nothing. Squadoosh. It was sufficient in Thomas’ view that “the standard set forth in Tinker … is without basis in the Constitution.” Tinker was wrong; enough said. Although Thomas was pleased to join the majority opinion “because it erodes Tinker’s hold in the realm of student speech,” he concurred as well to express his view that “the better approach is to dispense with Tinker altogether, and given the opportunity, [he] would do so.”

Justice Thomas similarly bulldozed settled First Amendment law in his recent concurrence in Beard v. Banks (2006). The question there was whether the First Amendment permits prison officials to forbid particularly dangerous inmates from receiving newspapers, magazines and photographs. Settled precedent – most famously articulated in Turner v. Safley (1987) – applied a balancing test to claimed infringements of prisoners’ constitutional rights. Those decisions clearly established that prison conditions are subject to some First Amendment scrutiny. (See Safley and O’Lone v. Estate of Shabazz, 1987.)

Chief Justice Roberts’ plurality opinion in Beard upheld the policy under the Safley framework. Here, too, Justice Thomas (joined by Justice Scalia) concurred, but only in the judgment. Invoking the view he set forth in his 2003 concurrence in Overton v. Bazetta, Thomas argued that prison conditions are constrained only by the Eighth Amendment’s prohibition of cruel and unusual punishment.

And what was his rationale for asserting that the Safley line of decisions should be overruled in relevant part? Put simply: They are wrong. In Thomas’ view: “States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivations – provided only that those deprivations are consistent with the Eighth Amendment.” (Here, Thomas quoted from his Overton concurrence.) That central fact – without any collateral inquiry into the settled nature of the Safley precedent, its progeny, and the reliance that those cases had inspired – was enough to reject settled law.

3 features of Thomas’ jurisprudence

Justice Thomas’ extreme view of stare decisis has three features that distinguish him from the rest of the Court, all of which deserve attention. First, he is unflinchingly honest. If he thinks the old cases should be discarded, he says so. Second, he is thinking big and tackling the serious questions in constitutional law to which the Court has not given a fresh look in decades. Third and most fundamentally, he believes that precedent qua precedent concerning constitutional law has no value at all; he does not give stare decisis any weight. Justice Thomas’ view is, at bottom, a doctrine of constitutional stare indecisis.

Constitutional candor. Honesty, they say, is a good policy. Whoever “they” are, they are right, and Justice Thomas is with them. He has no interest in the half-measures that typify some recent opinions. I refer to those in which a plurality, confronting a prior precedent – generally one in which retired Justice Sandra Day O’Connor had provided the decisive fifth vote keeping alive a doctrine announced by the Warren Court – begrudgingly reaffirms the old doctrine in name but leaves it drained of all vitality. In Morse Justice Thomas wouldn’t silently weaken Tinker; he would proudly drive a stake through its heart until it is cold and dead in the ground. The same holds true with Safley in Beard. Thus, for the Beard plurality, Safley was an obstacle to be recognized and distinguished. For Thomas, to invoke another metaphor, Safley was but trash to be thrown out.

Although one might not think that such “candor” would cause a doctrinal fight in the Court, it has. To some other members of the Court, Thomas’ “candor” runs up against principles of judicial restraint. The governing idea is that (because of stare decisis) the Court should not formally overrule precedents unless and until absolutely necessary. But there is no genuine conflict between modesty and honesty. If a member of the Court truly has not decided what course doctrine should take, baby steps are good. Still, one gets an abiding sense from recent decisions that purport to “go slow” that some members of the Court secretly have their foot on the gas and are taking everyone for a ride. In this regard, consider Justice Scalia’s FEC v. Wisconsin Right to Life concurrence, which reached the same result as the chief justice’s plurality opinion. The difference was that in his concurrence Scalia objected vehemently to Roberts’ refusal to forthrightly overrule McConnell: “This faux judicial restraint is judicial obfuscation.”

With friends like these, John Roberts hardly needs enemies. Nonetheless, it is a valid point. Thomas’ more-candid approach is fundamentally more democratic. It lets litigants (and the public more generally) know both where a justice is and where he is headed. The Court’s opinions are supposed to set forth its genuine rationale. In fact, the Court has long opposed cameras in the courtrooms on the ground that the judiciary is – through its opinions – the branch of government that is most open about its decision making. And although the public’s options are limited if people do not like a constitutional-law decision, they can at least elect a new president or even call a constitutional convention. Lower courts as well are expected not only to adhere to the Supreme Court’s formal holdings but also to follow the logical course of its precedents. That system, of course, breaks down if the decisions are less than fully candid.

One can disagree with Justice Thomas on the substantive questions of First Amendment law. After all, in Morse, eight justices of the Supreme Court did. In fact, his argument for overruling Tinker came sufficiently from left (or perhaps right) field that no other member of the Court found it necessary or appropriate to respond to his lengthy and fascinating opinion. Even so, one cannot fairly argue with his forthrightness.

The big picture. The second significant feature of Justice Thomas’ approach to constitutional law is that he is thinking about – more important, rethinking – profound questions. And he is willing to embrace what are, under current law, radical new approaches. He packs hand grenades, not scalpels, in his constitutional satchel. Let the rest of the Court apply a balancing test to decide whether the student in Morse could be suspended for carrying a particular, albeit stupid and incomprehensible, sign. For Justice Thomas, however, there is more than ad hoc balancing at stake here. He wants to decide whether the First Amendment applies in schools at all. By the same token, let the rest of the Court sort out the application of another balancing test to resolve whether a group of prisoners can be barred from receiving particular magazines. How they tip the balancing scales does not interest him. For he wants to revisit whether the Constitution protects prisoners (other than through the Eighth Amendment) at all.

Such opinions, considered in isolation, could leave the mistaken impression that Justice Thomas’ “big idea” is to diminish First Amendment freedoms. Not so. In WRTL, for example, he would overrule precedent and dramatically expand the First Amendment’s protections in the context of election campaigns. Another example is his view that, in confronting laws that limit consumers’ access to information, the Court should reject the intermediate protection afforded commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York (1980), and its progeny and instead apply strict-scrutiny review. Thompson v. Western States Medical Center (2002) (concurring opinion) (citing 44 Liquormart, Inc. v. Rhode Island (1996) (Thomas, J., concurring in part and concurring in the judgment).

The Supreme Court desperately needs big thinkers like Justice Thomas. We have, after all, witnessed enough of nine justices all too regularly restricting their views of the cases before them to some convoluted view that emerges through the fractured lens of precedent. Just as scientists have not discovered all of the great ideas in physics, and historians constantly unearth materials that give us a better understanding of previous eras, in the law it would be surprising if we were at the “end of history” with nothing profound left to be realized and announced. (Cf. Francis Fukuyama, The End of History and the Last Man, 1992.)

On the current Supreme Court, the big thinking – the search for completely fresh approaches – happens solely on the Right, principally in the separate opinions of Justices Thomas and Scalia. When was the last time that a justice advocated a core change in doctrine that in an earlier era would have been associated with William Brennan or Thurgood Marshall? Certainly no justice responded to Thomas by arguing the decisions that limited the rights conferred by Tinker and Safley be overruled. That is true, in part, because the Court no longer has any truly active liberals – Stephen Reinhardt sits on the 9th U.S. Circuit Court of Appeals and Larry Tribe sits in Cambridge, Mass. But it is also because the Left wallows in a perpetual holding pattern. As it does, it tries to keep various Warren Court doctrines on life support long enough, presumably, to be fully resuscitated later by a resurgent progressive majority.

The dawn of that new day, however, is not coming, at least not anytime reasonably soon. Hence, arguments are going to have to be won on their merits, not through the route of securing liberal votes. The only likely retirements under the next president – Justices Stevens and Souter, and potentially Justice Ginsburg – are all on the Court’s left, which means that the Court’s ideological composition is either going to stay the same (under a Democrat) or shift potentially dramatically to the right (under a Republican).

For the law to mature and prosper, profundity needs to come from all ideological directions, and indeed from directions that defy ideology altogether. Genuine intellectual truth emerges from a vigorous competition between contested ideas; it is not conjured from thin air or imposed through the exercise of raw power. A divided Court has some of the same benefits as a divided government. The majority develops better policies in the face of criticism and the prospect of losing uncommitted moderates. As a consequence, the ultimately “correct” answer about how to interpret, say, the First Amendment is unlikely to emerge when only one wing of the Supreme Court advances bold new ideas.

So presidents need to nominate excellent judges who are ingenious and conscientious thinkers and who have the experience to confront problems in the real world. The Senate, in turn, needs to confirm them, even when it disagrees with their ideology. That is often a hard pill to swallow when, for example, the shift of a single vote could determine the fate of Roe v. Wade (1973), which to some is the foundation of a fundamental right for women and to others is a license to murder millions of unborn children. It is fact: We have to move beyond the seemingly insuperable impasses over tremendously difficult problems like abortion rights. To do that, milquetoast Supreme Court justices on the left or the right cannot help.

The weight of precedent. The final defining feature of Justice Thomas’ approach to precedent is the most radical. He thinks that, in the field of constitutional law, precedent is not entitled to any weight – none. On that view, the Court (and any individual justice) is always free to chart an entirely new course. Precedent has the value of, say, a law review article. (In truth, to Justice Thomas, a Brennan or Marshall civil liberties opinion is more like a student note in a second-tier journal at a third-rate school.) Such an article may be interesting. It may have useful ideas and citations. But if it is wrong, it absolutely must be disregarded in favor of the correct rule. To draw an analogy to administrative law, constitutional law precedent receives merely Skidmore deference; it is entitled only to that deference which arises from its power to persuade. (Skidmore v. Swift & Co., 1944.)

Here, Justice Thomas’ jurisprudence gets worrisome. There is a tremendous difference between one’s laudable willingness to forthrightly rethink the most important and difficult questions of constitutional law, and the aggressive, unrestrained, and unhesitant desire to cement one’s views into the edifice of the law regardless of contrary precedent. Obviously, the job description of a Supreme Court justice is to decide cases. Wisdom does require bold thinking, but it also counsels humility and restraint. Surely, prior decisions can and do engender substantial reliance; that is a fact not to be ignored. More important, it is no more probable that we are at the end of history in constitutional law than that Justice Thomas has, on his own, discovered legal truth. By that measure, it is well to bear in mind that none of the briefs in Morse advocated Tinker’s overruling; the school district actually embraced Tinker. Thomas, nonetheless, announced sua sponte (without any adversarial testing by the parties) that he would wipe the slate clean, and wipe out the premise of the plaintiff’s claim that he had any rights that could be infringed in the first place.

Prudence would seem to counsel that Justice Clarence Thomas temper his concurring opinions, using them as vehicles to address potential solutions that are different and better – potentially radically different – from existing doctrine. His colleagues and the academy could explore and debate those proposals. With more time and greater thought, his more radical ideas – and dramatic proposals that would hopefully emerge from other members of the Court – could be ventilated to determine whether they should be rejected as false starts or instead adopted at the sometimes substantial cost of abandoning settled law. None of us should fear the results of having our ideas tested before they are put into practice.