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Justice Thomas as Return of Justice Black?

I noted a while back that Justice Thomas in many ways resembles Justice Hugo Black, who served on the Court from the late 1930s to the early 1970s. Justice Black was mostly seen as a liberal Justice, and Thomas as a conservative, but both shared a distinctive style that sometimes made them mavericks: Both generally took the view that constitutional provisions should be interpreted the way they were understood when the provisions were written. Both preferred clear, bright-line rules to tests that required more judgment in their application. And both were much more willing than their colleagues to reconsider settled precedent.

This is particularly clear in Justice Thomas's concurrence in the K-12 school speech case, Morse v. Frederick: He was the only Justice willing to reverse Tinker v. Des Moines Independent School District, the 1969 case in which the Court first expressly held that government-run K-12 schools generally may not restrict student speech. (The flag salute case, West Virginia Board of Education v. Barnette, held in 1943 that schools may not require students to salute the flag; but as of Tinker, it wasn't clear whether Barnette was limited to the unusual circumstance of compulsory affirmation of belief.) He rested most of his argument on what he argued was the original meaning of the First Amendment, as applied to the states through the Fourteenth. And he also stressed that the Tinker standard, coupled with the modifications added since then (including by the majority in Morse itself), was too subjective to be a workable and principled rule of law.

And interestingly, in this case Justice Thomas's bottom line as well as his decisionmaking style matched Justice Black's: Justice Black was the one Justice in Tinker who would have held that government-run K-12 schools have a free hand in restricting student speech.

plunge (mail):
I'd be quite interested to see Thomas ruling on the issue of whether we can force students to salute the flag and recite the (religious) pledge.
6.27.2007 7:17pm
John (mail):
I think that's a pretty good analogy. Black always said he carried a little copy of the constitution with him at all times, reading it over and over or consulting it as the occasion required, and he was fond of quoting the first amendment.
6.27.2007 8:27pm
Steve:
But Thomas' opinion and Black's dissent are a study in contrasts. Thomas frames his entire argument in terms of the original understanding, looking at the interaction between schools and the First Amendment at the time of the Founding and throughout our history. Black's dissent, on the other hand, is simply a policy argument that the courts shouldn't get involved in running the schools.
6.27.2007 9:50pm
John Herbison (mail):
As Korematsu and Bush v. Gore showed, each would abandon principle when politics called for it.
6.28.2007 1:45am
John Herbison (mail):
As Korematsu and Bush v. Gore showed, each would abandon principle when politics called for it.
6.28.2007 1:45am
John Herbison (mail):
Sorry for the double post.
6.28.2007 1:46am
Daniel San:
Black's methodology was not distinctly a Textualist. He was interested in what the words say. He could appeal to Originalism when it served his purposes, but he tended to appeal to his own authority concerning the original intent even when his conclusions were obscure.

I have wondered at times whether his jurisprudence was much affected by his history in the Klan, at least in its anti-Catholicism. This question becomes interesting the comparison with Thomas, and the questions whether his jurisprudence is much affected by the fact that he is Catholic and is African American.
6.28.2007 10:21am
Brian G (mail) (www):
I doubt however, that Thomas was once a member of the KKK like Justice Black was.
6.29.2007 3:29pm