This page summarizes Justice Thomas’ jurisprudence, which is founded on an originalist approach to the Constitution. He writes more opinions per year than any other current sitting justice, which means this page will discuss only some of his greatest hits. Click here for all of his decisions.
In Printz v. United States, the Court held that Congress could not require state officials to conduct firearm background checks. Justice Thomas agreed that the law violated the Tenth Amendment. He added, though, that the Second Amendment might include a “personal right to keep and bear arms,” which the Court did not accept at the time. In District of Columbia v. Heller, the Supreme Court recognized that personal right. It enjoined a handgun ban, ruling that the Second Amendment allows law-abiding citizens to keep firearms in their homes.
In U.S. Term Limits, Inc. v. Thornton, the Supreme Court held that states could not enforce term limits against congressional candidates. Justice Thomas dissented, arguing that the Constitution is “silent” on this issue and that “the people of the States need not point to any affirmative grant of power” if they want to require qualifications from their own congressional candidates. In his view, the majority violated the “one overriding principle” of American government: “All power stems from the consent of the people.”
After President Franklin D. Roosevelt threatened to pack the Supreme Court, it began to interpret the Commerce Clause broadly. They interpreted “Commerce…among the several States” to include local matters that might have a substantial effect on interstate commerce. This “substantial effects” test empowers Congress to regulate almost anything. Justice Thomas rejects this test. Concurring in United States v. Lopez, he explained that the original meaning of the Commerce Clause includes only trade transported from one state to another. He complained that this “substantial effects” test invents a congressional “police power over all aspects of American life.” In United States v. Morrison, he calls the test a “rootless and malleable standard” that has “no limits.” And in Gonzales v. Raich, he applied this complaint to “marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana.” Despite his repeated complaints, the Court has kept the “substantial effects” test. But the “substantial effects” test is no longer limitless. In National Federation of Independent Businesses v. Sebelius, for example, the Court ruled that the Commerce Clause does not empower Congress to force people to purchase health insurance.
The Supreme Court’s expansive view of the Commerce Clause does not only empower Congress. It also limits the states from regulating interstate commerce. Justice Thomas disagrees with this view. As Justice Thomas explained in Comptroller of Treasury of Maryland v. Wynne: “The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause. It contains only a Commerce Clause.” He best laid out his view in Camps Newfound/Owatonna, Inc. v. Harrison, which compares the Commerce Clause with the surrounding constitutional text. This originalist comparison focuses on grammar, founding-era dictionaries, and the views of early commentators. Although the Supreme Court has not yet adopted his view, the Court also has not expanded the Dormant Commerce Clause Doctrine during Justice Thomas’s tenure on the Court, and it probably will not do so.
Justice Thomas has consistently argued that the Constitution’s text does not include a right to abortion. In Stenberg v. Carhart, he dissented to dissect the history of the right to abortion and the state statute in question. In Gonzales v. Carhart, he concurred to reiterate that the right to abortion “has no basis in the Constitution.” And recently in Whole Women’s Health v. Hellerstedt, he dissented to point out that the Supreme Court has played favorites with abortion, to the detriment of other constitutional rights. In his words, the Supreme Court “simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.”
For decades, Justice Thomas has objected that affirmative action violates the Equal Protection Clause. In Adarand Constructors, Inc. v. Pena, he wrote a separate opinion disapproving of the “racial paternalism exception to the principle of equal protection,” which is still “racial discrimination, plain and simple.” And in Grutter v. Bollinger, he critiqued the Supreme Court for putting affirmative action on a twenty-five-year time limit. He could not imagine the Equal Protection Clause would mean something different “300 months” after the opinion was released. While the Supreme Court has not adopted his view, it might in the future.
States did not always have to respect the Bill of Rights. In a long series of cases over the past century, the Supreme Court developed the “substantive due process” doctrine, which holds that the Due Process Clause of the Fourteenth Amendment prevents states from violating some constitutional rights. In McDonald v. City of Chicago, the Supreme Court recently applied substantive due process to the Second Amendment. Justice Thomas agreed with the outcome but not the reasoning. Examining the Fourteenth Amendment’s text and history, he found that the Supreme Court got it wrong: the Fourteenth Amendment protects rights through the Privileges and Immunities Clause, not the Due Process Clause. Even when Justice Thomas agrees with the majority’s outcome, he finds it important to contest any “legal fiction.”
According to Supreme Court precedent, federal law can supersede local law simply because Congress wrote a comprehensive and restrictive law, even if the federal law does not actually conflict with the state law. Justice Thomas rejects this theory of “implied preemption.” In Arizona v. United States, he explained that implied preemption “invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text,” making it “inconsistent with the Constitution.”
For a century, the Supreme Court has allowed Congress to delegate its powers to agencies, as long as that delegation serves an “intelligible” purpose. In Whitman v. American Trucking Associations, the Supreme Court unanimously did so again. In a concurrence, though, Justice Thomas expressed his reservations with the “intelligible principles” test, which “the Constitution does not speak of.” His reservations revived debate about the “non-delegation doctrine,” which could transfer powers from unelected bureaucrats back to Congress. But even absent that transfer, in Department of Transportation v. Amtrak, he concurred to argue that no corporation, even one empowered by Congress, should ever exercise legislative power.
The Supreme Court held that a city could take private land if doing so benefited the public. In Kelo v. New London, the Supreme Court did so again. Justice Thomas dissented, arguing that the Supreme Court has “erased the Public Use Clause from our Constitution.” He critiques the majority’s view of eminent domain, which effectively empowers governments to seize whatever private land they choose. He argues that the text and history of the Public Use Clause require that the public at least use the land, rather than simply accrue benefits from it.
Justice Thomas argues that the Supreme Court should treat voting rights law in a principled fashion. In Shelby County v. Holder, the Court enjoined one burdensome requirement under the Voting Rights Act and not the other. Justice Thomas called that decision inconsistent because the majority “compellingly demonstrates” why both provisions were unconstitutional. In Holder v. Hall, Justice Thomas made a similar point. He argued that the prevailing legal tests for interpreting the Voting Rights Act do not “comport with the terms” of the statute and led to “a disastrous misadventure in judicial policymaking.” Even when he sympathizes with “practical concerns,” he thinks the text should come first.
Justice Thomas has an unorthodox view of the First Amendment’s Establishment Clause: that it does not apply to state laws. He best explained this view in Elk Grove Unified School District v. Newdow, where he argued the Establishment Clause is “a federalism provision” that merely prevents Congress “from interfering with state establishments.” In Zelman v. Simmons–Harris, he wrote that meant states could fund private religious schools, as long as taxpayers approve. In Van Orden v. Perry, he complained that Establishment Clause jurisprudence “leaves courts, governments, and believers and nonbelievers alike confused” because it is unobjective. And finally in American Legion v. American Humanist Association, he lays out an objective test for the Establishment Clause based on its text and history.
The Supreme Court has long held that the government can regulate speech—especially commercial speech—if the government has a strong enough interest. In 44 Liquormart, Inc. v. Rhode Island, Justice Thomas concurred that regulating truthful advertising is not a strong enough interest. He explained that “keeping consumers ignorant” can never justify limiting First Amendment rights. It is always “illegitimate,” no matter whether the speech is commercial or personal.
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