Dispatches from the Creation Wars

Sandefur on Clarence Thomas

Timothy Sandefur has written a review of Henry Mark Holzer’s The Supreme Court Opinions of Clarence Thomas. The review is going to appear in the NYU Journal of Law and Liberty, but you can get it on SSRN. It’s particularly interesting, I think, because while Sandefur is an admirer of Thomas in many ways, he is also a staunch critic of much of his jurisprudence. That allows for an objectivity that is missing from most discussions of Thomas and a seriousness that avoids all the silly political arguments about Thomas (“he doesn’t ask questions” or “he’s just Scalia’s lapdog” or other such superficial nonsense) and focuses instead on the substance of his views on constitutional interpretation.

The article also illustrates the key differences between libertarian and conservative views on the judiciary and constitutional interpretation, which are both many and deep. For example, he blasts Holzer’s simplistic and uninformed dismissal of substantive due process.

Holzer fails to provide any serious consideration of the meaning of Substantive Due Process, however. He never mentions Lochner v. New York, perhaps the most notorious of all substantive due process cases. Nor does he refer to Loan Association v. Topeka; Hurtado v. California, or Justice Stephen Field’s dissent in Munn v. Illinois, generally considered the three gateway decisions to the theory that only much later came to be called “substantive due process.” Holzer instead starts his discussion with Griswold v. Connecticut, a case which found that the Due Process Clause was violated by a state law forbidding doctors from advising married couples about contraception. The Court found that although the Constitution does not specifically protect the right of married couples to make intimate decisions without interference by the state, the Bill of Rights taken as a whole necessarily implies the existence of a zone of privacy which includes such a right. In the Court’s words, this zone of privacy is formed by “penumbras,” or shadows, that “emanate” from the specific guarantees of the Constitution. Griswold is a far easier case to attack than its predecessors in the Substantive Due Process tradition, given its eccentric language and the hypocrisy of its author, Justice William Douglas (who showed far less respect for such explicit constitutional guarantees as property rights). Focusing on Griswold is misleading, however. By pinning his discussion of substantive due process to such an easy target, Holzer can evade complicated theoretical questions and repeat the hoary conservative myth that the theory is merely “a tool-for-all seasons” by which judges can “invent some constitutional peg on which to hang their hats, some hitherto unknown ‘fundamental right,'” so as to nullify laws that they personally dislike. This is a politically popular caricature of a legitimate constitutional theory with at least a century and a half of legal precedent to support it.

Sandefur has done an excellent job of explaining and defending substantive due process in the past. For legal theory junkies like me, this is a thought-provoking article.