In Daniel Keyes’ novel, Flowers for Algernon, a medical
experiment nearly triples the IQ of the protagonist, Charlie
Gordon. Apparently, the President’s experiment with our health care
system has produced a similar effect on Supreme Court Justice
Clarence Thomas. For two decades, progressives have claimed that he
is intellectually unfit to sit on the Court. They have repeatedly
told us that Thomas is, as one commentator recently
phrased it, “a dunce and a worm.” However, as myriad
constitutional challenges to Obamacare work their way through the
courts toward an inevitable showdown before the Supreme Court, the
dunce’s intellectual powers have somehow improved. In fact, we are
now advised that Thomas is not merely intelligent, but that he is
an evil genius with an outsized influence on the rest of the
Court.
This miraculous metamorphosis was recently described in a
New Yorker profile of Justice Thomas and his wife titled
“Partners.” According to the author of this remarkable piece of
instant revisionism, Jeffrey Toobin, “In several of the most
important areas of constitutional law, Thomas has emerged as an
intellectual leader of the Supreme Court … when it comes to the
free-speech rights of corporations, the rights of gun owners, and,
potentially, the powers of the federal government … the majority
has followed where Thomas has been leading for a decade or more.”
Toobin’s inclusion of Thomas’ potential ability to influence the
views of other justices on the powers of the federal government is,
of course, a reflection of progressive fears concerning the Court’s
eventual ruling on the constitutionality of Obamacare’s individual
mandate.
And these fears are entirely justified. Justice Thomas is
a fervent advocate of “originalism,” the interpretive principle
which holds that the Court should base its rulings on the original
meaning of the Constitution. Thus, if Thomas truly does wield the
kind of intellectual influence now attributed to him by Toobin and
other progressives, the individual mandate is indeed in grave
danger. Obviously, originalism includes the view that the powers of
the federal government are limited to those enumerated to it by the
Constitution. That list does not include the authority to order
Americans to buy products or services sold by private enterprises.
And it is a virtual certainty that Thomas will reject any argument
suggesting that the Interstate Commerce Clause confers such power
on Congress.
Why, then, would a “reform” advocate like Toobin suddenly
pronounce Thomas the intellectual leader of the Court when he knows
the man will want to strike down the President’s “signature
domestic achievement”? Michael Barone
provides a plausible answer: “It’s possible to read Toobin’s
article as a partisan hit job, echoing the demands of 74 Democratic
House members that Justice Thomas recuse himself from sitting on a
case challenging the constitutionality of Obamacare because of his
wife’s involvement in the Tea Party movement.” If Thomas is a
dunce, how big a threat could he be? But if he’s actually a
Machiavellian manipulator of Court opinion plotting Obamacare’s
destruction with the aid of his Tea Partier wife, then he cannot be
trusted to pass judgment on the law’s constitutionality.
This would explain why Toobin, in the fourth sentence of a
9,100-word essay, mentions that ridiculous demand by a group of
far-left Democrats for Thomas to recuse himself. Never mind that no
code of ethics or statute requires him to do so. The relevant
section of the U.S. code states that a
justice should recuse himself “in cases where he served in
government employment and in such capacity participated as counsel,
advisor or material witness concerning the proceedings or expressed
an opinion concerning the merits of the particular case in
controversy.” Note the absence of any verbiage relating to the
political opinions of a spouse. The only passage containing that
word refers to a husband or wife with a financial interest in an
entity that is itself before the court, not a spouse with an
ideological interest in the outcome of a case.
It is worth noting that the leader of those 74 Democrats
demanding Thomas’ recusal was that paragon of ethical conduct,
Anthony Weiner. This may be why Toobin
urged his fellow journalists not “to make a federal case” of
the New York congressman’s … er …foibles. Oddly enough, Toobin
feels no such reticence when it comes to Justice Thomas’ wife. Much
of his New Yorker profile is devoted to her connection
with the Tea Party movement, which he insinuates is somehow
improper. He portentously points out, for example, that she has
spoken out against Obamacare: “[H]er particular target was the
health-care-reform law, which was, in her view, clearly
unconstitutional.” The clear implication is, of course, that
Justice Thomas has a conflict of interest pursuant to his wife’s
opposition to “reform.”
Oddly, Toobin has never demonstrated any similar concern
about a
very real conflict of interest involving the newest Supreme
Court appointee. As it happens, the language quoted above from the
United States code (Section 455 of Title 28) so closely matches the
pre-nomination activities of Justice Elena Kagan that it may as
well have been included in her job description as U.S. Solicitor
General. In fact, Neal Katyal, the acting Solicitor General who
unsuccessfully defended the individual mandate in the 11th Circuit
Court of Appeals, was assigned to the litigation team by Kagan
herself. Toobin’s lack of interest in this, combined with his
reluctance to hold one of Justice Thomas’ most vehement
congressional critics accountable for behavior that was both
unethical and disgusting, suggests that his main concern is saving
Obamacare.
The irony of all this is that Toobin is probably right
about the intellectual heft of Justice Thomas. Moreover, that the
left has consistently underestimated him has been good for the
country. There isn’t the slightest possibility that he will recuse
himself when Obamacare finally makes its way to the Supreme Court
and he will assure that the individual mandate is ruled
unconstitutional, and perhaps convince four additional justices to
strike down the rest of the pernicious health care law as well.
Once the Supreme Court has issued its ruling, however, we can
expect Thomas’s intellectual powers to recede just as Charlie
Gordon’s did in Flowers for Algernon. It won’t be long
before progressives are once again telling us that he is an idiot.
But, in the interim, we can place a few flowers on Obamacare’s
grave.
