Calling Them as He Sees Them: The Disappearance of Originalism in Justice Thomas's Opinions on Race

Joel K. Goldstein

During his first two decades on the Court, Justice Clarence Thomas has been associated with originalism and is often viewed as its leading judicial proponent. Justice Thomas has linked originalism with the effort to limit judicial discretion and to promote judicial impartiality. In cases dealing with many constitutional provisions, Justice Thomas has shown his commitment to originalism by often writing solitary concurrences and dissents advocating an originalist analysis of a problem. Yet in constitutional cases dealing with race, Justice Thomas routinely abandons originalism and embraces the sort of constitutional arguments based on morality or consequentialism that he often discounts. These opinions in race cases are often powerful and impassioned, just not originalist. Justice Thomas’s behavior in these race cases indicates that he is less committed to originalism than often suggested or than he claims. In these cases, he has often provided a distinctive, and personal, perspective to the Court. In doing so, however, he departs from the originalism that he has otherwise advocated as the route to judicial impartiality.