But here we have two public-school cases, both involving the rights of students, and both decided within days of each other, with Justice Thomas writing concurring opinions in each case, concurrences that no other justices joined. Don't you think that someone, somewhere, might have asked Thomas: "Um, so you ask what the Framers would have thought about speech in school but not what they would have thought about voluntary integration. Why not?"
Here's our guess: The question is not asked because it does not yield an answer Justice Thomas would like. There is no way to make an argument, at least with a straight face, that the 14th Amendment was originally understood to prohibit voluntary school integration. No way.
Originalist Sins
The faux originalism of Justice Clarence Thomas.
By Doug Kendall and Jim Ryan
Posted Wednesday, Aug. 1, 2007, at 5:16 PM ET
Jan Crawford Greenburg, in her recent book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, has—along with several other Supreme Court commentators—demolished the once broadly held view that Justice Clarence Thomas simply follows the lead of Justice Antonin Scalia. Indeed, if Greenburg's book is to be believed, it's closer to the other way around. With this appropriate reassessment of Thomas' intellectual role on the Supreme Court, a broader claim has been advanced by his supporters that Thomas is a model originalist: a principled justice with a fixed judicial method. He is more radical than Scalia—even his supporters will admit that—but that is simply because he is so principled, they contend. Whereas Scalia will dilute his originalism with a dollop of stare decisis, Thomas likes his served straight up, even if it means upsetting decades of settled precedent.
This notion that Thomas is radical but principled is half right. To be precise, the first half is right: He is radical. But he does not seem very principled.