Clarence Thomas' originalist interpretations go too far, even for fellow conservatives

  • Clarence Thomas this week argued domestic abusers shouldn't be prevented from owning guns.

  • His lone dissent in the 8-1 Supreme Court decision hinged on an originalist interpretation of the law.

  • One legal expert told Business Insider that Thomas' ruling showed how "absurd" originalism could be.

Clarence Thomas this week offered the lone dissent in a Supreme Court decision that ultimately ruled that people with a history of domestic violence can be prevented from legally owning guns.

His lengthy disagreement with the ruling in United States v. Rahimi hinged on an originalist interpretation of the law that Thomas, a staunch conservative, is known for.

Originalism is a legal framework based on interpreting constitutional law as it would've been understood at the time it was written nearly 250 years ago — before the invention of electric lighting, indoor plumbing, and steam-powered trains.

Once considered a fringe theory created in response to perceived overreach by a liberal court, this method of interpretation — popularized by Antonin Scalia in the late 1980s — argues that only a formal amendment ratified by Congress should be able to alter how we interpret the Constitution's established rights and restrictions.

Legal experts who spoke with Business Insider said Thomas' latest decision highlighted how inconsistent and even ridiculous this method of interpretation could be.

"This is a case where, if you invalidate this statute on the basis of originalism, you go back in time and say, essentially, at the time of the original ratification of the Constitution, domestic violence was tolerated — and therefore, based on originalism, we need to invalidate the statute," John P. Gross, a professor at the University of Wisconsin Law School who's also the director of the Public Defender Project, told BI. "And that is, of course, an absurd, horrible result."

Gross noted that originalism raises questions such as whether women should be allowed to sit on the Supreme Court, because the nation's founders wouldn't have allowed it then.

"A strict originalist view could be that we shouldn't have appointed women to the judiciary unless we get a formal amendment saying women can be judges," Gross said. "So that's the kind of logical extension of originalism that leads to these truly absurd results. In that context, it's very difficult to defend originalism as a useful, meaningful way of interpreting the Constitution."

With originalism, 'you get absurd results, and people will think you are a nut'

Three legal experts told BI that Thomas was at least consistent in his framework for interpreting the law. But this consistency in his thinking allows him to present arguments at odds with modern values that can sometimes contradict each other.

"This is a court that claims to be an originalist court and, if nothing else, these opinions establish that originalism is not a straightforward approach and does not lead to greater certainty, despite the claims that originalists make," Carolyn Shapiro, the founder of Chicago-Kent College of Law's Institute on the Supreme Court of the United States, told BI.

Shapiro said originalism "can lead to different results depending on who is doing the analysis," continuing: "It just simply does not provide the certainty that originalists claim."

An engraving of the Supreme Court of 1888 in a courtroom.
The Supreme Court of 1888 decided that the Constitution was broad enough to cover inventions the Founding Fathers never dreamed of.AP Photo

Thomas' strict originalist interpretations in recent rulings, such as a unanimous decision in a trademark case earlier this month, have also begun to cause a fray among the other conservative justices. CNN reported Amy Coney Barrett, who identified as an originalist when she took the bench in 2020, accused Thomas in a recent opinion of having a "laser-like focus on the history" that "misses the forest for the trees."

Thomas' reliance on "history and tradition," Barrett wrote in a concurrence that the court's three liberal justices signed on to, "is wrong twice over."

Gross said that Thomas being the lone dissent in the case involving domestic abusers carrying firearms showed how committed he was to his originalist framework, even when the other conservative justices on the court clearly saw the risk to society if SCOTUS didn't modernize its thinking.

Gross said he expected the outcome the Supreme Court ultimately reached, though he was surprised that Justice Samuel Alito, another strict originalist, didn't join Thomas' dissent.

"I think perhaps Alito's absence from this opinion suggests that even he realizes, as Justice Scalia did at some point, that if you keep pushing these ideas about originalism, you get absurd results, and people will think you are a nut," Gross said. "But Thomas is willing to go there. In terms of intellectual purity, great, I can't say the guy's wishy-washy, but even Alito's not part of it — because he doesn't want to be seen as a nut."

Representatives for the Supreme Court didn't respond to a request for comment.

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