FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS by Scott Douglas Gerber. New York: New York University Press, 1999. 281pp. Cloth $30.00. ISBN 0-8147-3099-X.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: rbrisbin@wvu.edu.

As Scott Douglas Gerber notes in his introduction, Justice Clarence Thomas is a most difficult person to discuss. As with this reviewer, nearly every informed observer of the Supreme Court holds an ideologically-charged impression of Thomas's behavior and opinions. In this book, Gerber, who is affiliated with Bowling Green State University, offers what he asserts is an objective, impartial, and neutral account of Thomas's jurisprudence through the summer of 1996. Although some persons might regard neutrality and impartially to be ideological constructs, Gerber succeeds in presenting an intelligent analytical summary of Thomas's politics and judicial opinions. It is coupled with an able summary of the contentions of the justice's critics. The result is a book that offers important insights about ideological and jurisprudential divisions among the current justices and that provides guideposts for future studies of Justice Thomas. Also, it is a useful guide to the extensive commentary and other publications about Thomas.

Gerber opens his book with a chapter that includes a very brief biography of the justice, a summary of Thomas's service at the Equal Employment Opportunity Commission, and a discussion of the rancorous nomination and confirmation of the justice. Since Gerber has chosen to focus on the jurisprudence of Thomas and not offer a biography, this chapter is not a probing inquiry into the sources of the justice's political attitudes, conceptualization of law, or his judicial role. Also, there is no psychoanalytic exploration of what appears to be the justice's complex personality. Additionally, the chapter does not contain a detailed inquiry into the political maneuvers surrounding Thomas's nomination and confirmation. Instead, the author presents a commentary on the commentators on the nomination. He analyzes the commentary to illustrate that Thomas has always been the subject of vitriolic, ideologically-generated assessments. Gerber then reinforces this conclusion by presenting a summary of the commentary. Strangely, however, Gerber's empirical assessment of Thomas's freshman year on the Court, which might serve as an immediate riposte to the commentators' predictions about Thomas, is confined to an appendix. Regardless, having established his point about the ideological bias of almost all commentary on Thomas, Gerber implicitly asserts his approach is better or more just because he at least tries to be neutral and objective (pages 32-35).

The second chapter offers an assessment of the jurisprudential philosophy that Thomas offered in his confirmation hearing. Gerber focuses his attention on the meaning of the justice's assertion that he practices judicial neutrality. Gerber's argument is that in his confirmation hearings Thomas proffered a pro-rights and Lockean version of a natural rights philosophy that he has belied since he became a justice. Although the argument about the Lockean nature of the confirmation statements is quite insightful, in this chapter Gerber again makes a strange choice. Instead of presenting attitudinal data that reveal how Thomas's confirmation hearing statements fell victim to what most observers of the Court would label a conservative political ideology, the record of Thomas's voting behavior is isolated in a second appendix. Instead of serving a bridge from the discussion of Thomas's Lockean confirmation statements to the analysis of specific opinions that reveal the contradictory meaning of his conservatism as a justice, as could be achieved by the inclusion of the voting data to extend the argument concluding on page 43, the voting record is withdrawn from the immediate attention of the reader.

Chapters three, four, and five present a discussion of Justice Thomas's opinions on civil rights, civil liberties, and federalism cases. Since Gerber examines only five terms, a minimal number of opinions receive close attention. Nonetheless, Gerber provides excellent analysis of how historical or originalist arguments pervade Thomas's most important opinions. The civil rights chapter discusses only six opinions: two each on desegregation, the Voting Rights Act, and affirmative action. However, Gerber succeeds in illustrating how important text and historical referents are in Thomas's argument that rights protect individuals, not disadvantaged groups or classes. The thrust of Thomas's argument is to call into question the post-Carolene Products footnote logic of heightened scrutiny of laws affecting various disadvantaged classes. Gerber implies this theme in his commentary on Thomas's opinions. However, Gerber then gets sidetracked into contrasting Thomas's views with those of critical race theorists rather than to the other justices' interpretations of the meaning of levels of scrutiny. The result is an unfortunately circumscribed conclusion that undervalues the significance of the deviation of Thomas's jurisprudence from the uses of scrutiny analysis adopted by the other conservative justices of the Rehnquist Court. Also, the political significance of the similarity of Thomas's practice of originalist and Fourteenth Amendment interpretation to the views of former Reagan administration attorney general Edwin Meese III (1986) is neglected.

In chapter four, a discussion of Thomas's views on procedural due process and the First Amendment is divided into three parts. The first section admirably explores how Thomas has used historical texts to truncate the application of the Eighth Amendment so it does not apply to the prison context (page 120) and to reject the deferential "modern" approach to habeas corpus. With attention to three religious freedom and freedom of speech opinions, Gerber examines how Thomas has used historical arguments to challenge a variety of precedents and arguments about the First Amendment. The unique character of Thomas's approach is pointed out in a second section of the chapter, which is sandwiched between the due process and First Amendment discussions (pages 137-39). In this section, Gerber argues that Thomas is not a jurisprudential clone of Justice Antonin Scalia. This is a critical point. Scalia's conservatism is expressed through the discourse of a lawyer - the "old" legal process or reasoned elaboration jurisprudence of the 1950s (Brisbin 1997). Thomas employs a mix of what Gerber correctly distinguishes as "liberal" and "conservative originalism" (page 193). Consequently, in contrast to Scalia, Thomas relies far more on historical resources and pays far less attention to precedent. However, there also is a core of agreement between the two that Gerber slights. Both justices have a blind faith that unquestioned adherence to the law - as they define the law - is essential in a good society.

The originalist approach of Thomas is also the subject of the chapter on federalism. In this chapter Gerber devotes his attention exclusively to the Thomas opinions in U.S. TERM LIMITS V. THORNTON (1995) and U. S. v. LOPEZ (1995). Besides an explication of how Thomas used historical materials to challenge the interpretations of the other justices, Gerber discusses the historical accuracy of Thomas's analysis. This results in a comparison of Thomas's use of historical facts with the facts offered by his critics (pages 144-47). Although this is a useful approach, Gerber could have addressed two other considerations. First, in both TERM LIMITS and LOPEZ Thomas cited John Marshall to justify policy positions that appear to be opposed to Marshall and more akin to those of John Taylor of Caroline and other states' rights politicians. Yet, in his attention to Thomas's use of history, Gerber does not attend to the curious misreading of Marshall's opinions by Thomas (see page 169). This is an example of Gerber's tendency to focus on the reliability of facts mustered by Thomas rather than to criticize the justice's interpretation of the facts. Second, Gerber does not examine Thomas's philosophy and methodology of history with reference to the practice of the uses of "external" and "internal" history by the justices as, for example, they are discussed in the work of Charles Miller (1969). Instead, Gerber evaluates only the commentators' assessment of the historical information in Thomas's opinions.

In his exposition of the originalist message in the opinions of Thomas, Gerber has ably highlighted the unique stamp of the justice's conservative ideology. However, I have three caveats. First, many of the justice's opinions are not discussed in Gerber's book. A quick scan of these opinions indicates that many featured the interpretation of federal statutes rather than constitutional interpretation. To evaluate the comprehensiveness of Thomas's jurisprudential vision, it would be most useful to discuss if or how Thomas's originalism and textualism surface in his statutory interpretations. Additionally, a discussion of statutory interpretation could reveal whether Thomas respects the policy decisions and discretionary judgments of administrators and the Congress and how he values the historical patterns of checks and balances in the separated powers system.

Second, Gerber could say much more about the relationship of Thomas to the jurisprudential positions of the other justices. Gerber tends to concentrate on what is unique about Thomas's opinions. But, as indicated by the voting interagreement scores in the second appendix (which also could be expanded into a bloc analysis), Thomas most commonly casts a vote in support of another justice's argument. What actions of the other justices and which of their policy and jurisprudential positions does he support?

Third, authors might want to check the accuracy of Gerber's citation of their publications. For example, in footnote 12 to Chapter Six, which cites Brisbin (1997) without a page reference, Gerber claims that this reviewer asserted that, "Thomas simply follows Justice Scalia." (Gerber 1999: 193). Having diligently searched the cited publication, I found numerous occasions that indicated voting agreements between the two justices on various opinions or cases. However, in the cited book I wrote that it "does not explore . . . his [Scalia's] possible influence over Justice Clarence Thomas" (Brisbin 1997: 9), and I have never written that Scalia's jurisprudence guided the jurisprudence of Thomas. Indeed, my only published commentary on Thomas's opinions, those on federalism, makes a point identical to that of Gerber! (Brisbin 1998: 203-5).

Despite these caveats, Gerber has provided an able introduction to Clarence Thomas the jurist. By his attention to Thomas's originalism, his use for history, and his political individualism Gerber points out what makes Thomas a unique jurisprudential voice. Finally, Gerber illustrates what is often neglected - the diversity of political messages contained with the general attitudinal conservatism of the majority of the justices of the Rehnquist Court.

Brisbin, Richard A., Jr. 1997. JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL. Baltimore: The Johns Hopkins University Press.

Brisbin, Richard A., Jr. 1998. "The Reconstitution of American Federalism? The Rehnquist Court and Federal-State Relations 1991-1997." PUBLIUS: THE JOURNAL OF FEDERALISM 28 (1): 189.

Meese, Edwin III. 1986. "The Supreme Court of the United States: Bulwark of a Limited Constitution." SOUTH TEXAS LAW REVIEW 27: 455-66.

Miller, Charles. 1969. THE SUPREME COURT AND THE USES OF HISTORY. Cambridge: Harvard University Press

UNITED STATES v. LOPEZ, 115 S.CT. 1624 (1995).

UNITED STATES TERM LIMITS v. THORNTON, 115 S.CT. 1842 (1995).

Copyright 1995