When Law Attacks the Rule of Law

“Precedent” is one of the key mechanisms for restraining autocratic legalism, as demonstrated by the Trump campaign’s tactics following the 2020 election.
The nine chairs of the Justices lined up in the Court Chamber

“Networks don’t get to decide elections. Courts do.”1 Thus proclaimed Rudy Giuliani amid his quest to overturn the results of the 2020 election judicially. His statement encapsulates the strategy of undermining democracy and the rule of law through employing the very legal processes that are supposed to support them. Trump’s activities surrounding the 2020 election drew from this vision, which Kim Lane Scheppele identifies as “autocratic legalism.” This variety of legalism “attack[s] … a constitutional order while using the methods made possible by that constitutional order.”2

These attacks take many forms, as revealed in Jack Jackson’s Law without Future and Corey Robin’s The Enigma of Clarence Thomas. While Jackson presents a broad theoretical overview of conservative legalism, Robin focuses on the figure of Justice Clarence Thomas. Where their subjects overlap is in a seemingly obscure trend among some conservative jurists: a rejection of the legal force of “precedent.”

The idea of precedent means that similar cases should be decided in a similar manner. Precedent refuses to treat a case on its own but rather links it to past decisions as well as future possibilities. In doing so, precedent furnishes the possibility of a durable legal order that can fulfill the function that sociologist Niklas Luhmann described as “time binding.”3

What this means is that precedent is a key mechanism for ensuring continuity between the past and the future in the Anglo-American legal system. It is precedent rather than constitutional text that supports innumerable constitutional principles we take for granted, including even courts’ very ability to strike down unconstitutional laws.4 Precedent also furnishes one of the key mechanisms for restraining the tactics of autocratic legalism, such as those of the Trump campaign following the 2020 election.

Of course, nothing about Trump’s efforts to circumvent voters should have surprised those who were paying close attention to his strategy leading up to the election. As November 3 loomed, Trump readied an enormous legal team to fight battles about absentee ballots and monitor polls for hypothetical improprieties. The Trump administration also pushed fervently to ensure confirmation of Amy Coney Barrett to the Supreme Court. In September Trump claimed that a ninth justice would be needed to resolve the controversies stemming from the election, and in December he implored the Court to “have the courage” to decide it.5

Support for the disruptive power of a leader over the accumulated wisdom of legal tradition has a long history. In Thomas Hobbes’s 17th-century Dialogue between a Philosopher and a Student, of the Common Laws of England, the philosopher took aim against the writings of Sir Edward Coke, who had helped solidify the unwritten constitution in England, claiming that authority alone could ground a law, not precedent.6 While Hobbes’s writings have been deployed by those advocating democracy as well as by absolutists, his logic in the Dialogue undermines constitutionalism, to the extent that constitutionalism constrains the force of a ruler. In the wake of Trump and other “unprecedented” legal challenges, we could use a break from Hobbes.

Jack Jackson’s Law without Future eerily anticipated the 2020 election. Bookended by the 2000 decision in Bush v. Gore and the 2016 refusal of Republicans in the Senate, led by Senator McConnell, to hold hearings on President Obama’s nominee to the Supreme Court, Law without Future resonates with recent events, when a new confirmation immediately preceded efforts to undermine President Biden’s election.

In defining anti-constitutionalism, Jackson writes of “self-destructive legal analysis” and a “turn toward the law … that simultaneously undermined the basic tenets of legal interpretation.” One of the central features of anti-constitutionalism consists in abandoning the futurity of law. As Jackson explains, “Constitutionalism both presumes and requires future-oriented commitments,” which he views as having been abandoned by those on the Right.

It might be easy to contrast a commitment to the future with a commitment to the past in the form of the originalist methods of constitutional interpretation that have gained ascendancy in the federal judiciary.7 Yet Jackson’s book refuses such a simple dichotomy. Instead, it focuses on the role of precedent in bridging past and future.

Originalists have a conflictual relationship with precedent in constitutional law. They value what they deem the original meaning of the Constitution over its tradition of interpretation after ratification. Some do believe in adherence to so-called “super-precedents” like Brown v. Board of Education, which have been described as “decisions that no serious person would propose to undo even if they are wrong.”8 But others more comprehensively eschew reliance on past judicial decisions as a guide to original meaning and justify even these pivotal decisions not on the basis of precedent, but solely on originalist grounds.9 This originalist critique of precedent is why so many eyes were focused on whether Amy Coney Barrett would call Roe v. Wade a super-precedent (which she declined to do).10

Jackson astutely aligns the Supreme Court’s decision on the 2000 presidential election in Bush v. Gore with the Republican rationale for declining to consider Merrick Garland in 2016. Each decision, he argues, was designed to thwart precedent.

In Bush v. Gore, for example, the Supreme Court explicitly limited the force of its decision to the situation at hand. This choice indicated, to most legal scholars, that even the Court disclaimed that the case could ever be used as precedent.11

Meanwhile, the “Senate’s refusal to entertain any nominee put forth by President Obama after Scalia’s death” represented a similar phenomenon on the political rather than judicial stage. While this pertained to congressional practice instead of legal precedent, both episodes appeared—in line with Hobbes—to ignore prior norms. Might, it seemed, would make right.


The High Power of the Lower Courts

By Doni Gewirtzman

Also addressing the constitutional politics of the Right, Corey Robin’s eloquent political and intellectual biography, The Enigma of Clarence Thomas, takes a somewhat different tack. In apparent contrast to Jackson’s diagnosis of “self-destructive legal analysis,” Robin explores the deeper logic behind Justice Thomas’s constitutional decision making, which he grounds in Thomas’s life growing up in the midst of desegregation in the South, endorsing Black nationalism as a college student at Holy Cross, and experiencing discrimination throughout his education at Yale Law School and early career.

More than Jackson’s book, Robin’s in-depth analysis gives a window onto the sometimes surprising alignments between Right and Left critiques of liberalism, particularly with regard to its failures in addressing anti-Black racism. Robin’s treatment of Thomas’s stance on affirmative action is particularly trenchant in this regard. As Robin plausibly contends, “Based on his vision of racial stigmas, Thomas advances the position that the entire enterprise of diversity is the most recent attempt by white people to brand and belittle black people as inferior and deficient.”

In his dissent in Grutter v. Bollinger (2003), the Michigan Law School affirmative action case, Justice Thomas critiqued the elitism of the law school’s admissions requirements, which he saw, in Robin’s words, as its “most salient characteristic.” As Thomas explained, “The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions ‘standards’ that, in turn, create the Law School’s ‘need’ to discriminate on the basis of race.”12

Written 17 years ago, Thomas’s words in Grutter seem prescient, auguring a spate of recent critiques of meritocracy from the left, including Yale Law professor and alumni Daniel Markovits’s book The Meritocracy Trap, which analyzes how meritocracy in some ways simply replaced earlier systems of hierarchy while giving the appearance of being more benign.13

But as Robin’s book moves further away from the jurisprudence of race, his effort to furnish an overarching explanation of Justice Thomas’s judicial philosophy begins to seem a bit more forced. With regard to imprisonment, Robin traces Thomas’s position back to his reverence for his grandfather, who largely raised him and whom he treated with adulation in his memoir, My Grandfather’s Son, and the resulting value that he placed on “the authority figure as paternal and parental.”14 Such a paternal figure, when identified with the criminal law, acts sternly but for the child’s own good. By analogy, “such a carceral state, even if it’s racist, serves a vital function: it provides African Americans with every reason they need to steer clear of trouble.”

Yet this seems a somewhat thin reed upon which to rest Thomas’s support for the carceral state. That support is hard to resist reading in light of the Right’s historical support for punitive criminal sanctions. It is also consistent with a variety of other aspects of Thomas’s jurisprudence that Robin does not address, such as Thomas’s embrace of far-reaching executive power, which has been particularly significant for his broader influence.

Precedent is a key mechanism for ensuring continuity between the past and the future.

As Robin observes early on in the book, Thomas’s “former law clerks … play a leading role in and around the Trump regime. … No other justice under Trump has had as many clerks appointed to the judiciary.” Thomas’s former clerks include both John Yoo, author of the so-called “torture memos” in the wake of September 11, 2001, and DC Circuit Judge Neomi Rao, who authored a number of majority and dissenting opinions supporting the Trump administration’s broad claims for immunity, as well as some theorists of the unitary executive like Sai Prakash.15

Advocacy for a unitary executive emerged during the Reagan administration and gathered steam under President George W. Bush and, most recently, Trump. The concept explains many of the more obscure but significant rulings of the Supreme Court pertaining to the administrative state, including the decision last term that the structure of the Consumer Financial Protection Bureau violated the separation of powers.16

The absence of the unitary executive in Robin’s book left me curious about the genesis of Thomas’s support for the concept. Thomas’s own experience within the executive branch might offer some clues. On the one hand, he recalls in his memoir that before agreeing to chair the Equal Employment Opportunity Commission, he requested “total independence” with “no pressure to hire unqualified political appointees, no pressure to pursue an ideological agenda, and no attempts to cut the agency budget indiscriminately.”17 On the other hand, he recounts assenting to several presidents’ personal requests despite finding their subordinates troubling.18 This experience may have rendered direct presidential control more appealing than a network of administrators.

Another plausible explanation emerges out of Thomas’s efforts prior to his nomination. As Robin explains, Thomas hired two students of Leo Strauss to advise him on conceptions of the Constitution. Strauss, a conservative theorist at the University of Chicago, influenced members of the administration of George W. Bush, including, most notably, former Vice President Dick Cheney. Particularly salient within this context was Strauss’s insistence on the prerogative powers of the executive, based upon an idiosyncratic reading of John Locke. Alternatively, Justice Scalia, who promoted unitary-executive theory in 1988, may have influenced Thomas’s position. Or Thomas’s own clerks may have swayed his views. Whatever the case may be, I was left with this particular enigma still unresolved after reading Robin’s compelling book.

Justice Thomas’s originalism also receives strikingly little attention. Returning to the connection between originalism and precedent, the variety of originalism Thomas practices tends to be particularly dubious about adhering to precedent.

Thomas has therefore written separately in a number of cases, including those involving the doctrine of “incorporation,” or the application of provisions of the Bill of Rights and the 14th Amendment against the states. The settled mechanism for incorporation had long been the Due Process Clause of the 14th Amendment, but Thomas has frequently insisted that it should be the Privileges or Immunities Clause instead.

This return to Privileges or Immunities as the source of rights against the states succeeds, for Robin, in returning race to the core of the 14th Amendment. In the case in which Thomas most fully supported reviving Privileges or Immunities, McDonald v. City of Chicago (2010), he joined a majority of the Court to hold that states as well as the federal government were obliged to respect an individual right to bear arms. In his concurring opinion, Thomas recounts how anti-Black racism played into the late 19th-century decision that McDonald overturned, which held that the right to bear arms was valid only against the federal government.

If we stop the analysis here, the unsettlement of precedent comes to seem beneficial, rolling back generations of jurisprudence based upon racist foundations. Yet there are other reasons to believe that the way back is not, in this instance, the way forward.

Supreme Court adoption of Thomas’s argument—an eventuality that Justice Barrett’s appointment has made less implausible—would produce a vast transformation in who could claim constitutional rights like free speech, freedom of religion, and abortion. This is because the 14th Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (italics added). Whereas equal protection and due process apply to all persons, Privileges or Immunities covers only citizens. Restricting availability of protected rights to citizens would drastically limit the identity of rights holders.19 And this is to say nothing of the substantive limitations on rights that an anchoring outside due process might entail.

Reading The Enigma of Clarence Thomas through the lens of Jack Jackson’s focus on precedent and the unprecedented brings to the fore a set of themes neglected by this otherwise illuminating intellectual biography. Confronting Justice Thomas’s thoroughgoing embrace of originalism and its effect on judicial precedent would further deepen the enigma of the book’s title. What, in particular, is the relationship between originalism, which some scholars have identified as having a “race problem,”20 and what Robin demonstrates is Thomas’s deep awareness of the racial context and implications of legal doctrine? The answer to this question could have implications not only for Supreme Court jurisprudence but also for current debates about monument removal, critical race theory, and more. I look forward to reading that book someday too.


This article was commissioned by Ivan Aschericon

  1. C-SPAN, “Trump Campaign Pennsylvania News Conference,” November 7, 2020.
  2. Kim Lane Scheppele, “Autocratic Legalism,” University of Chicago Law Review, vol. 85, no. 2 (2018).
  3. Niklas Luhmann, Law as a Social System, translated from the German by Klaus A. Ziegert (Oxford University Press, 2008), p. 147.
  4. Chief Justice John Marshall established the principle of judicial review of unconstitutional laws early in the history of the United States in Marbury v. Madison, 5 U.S. 137 (1803). Whether or not his interpretation of the Constitution in this respect was correct has been the subject of heated and continuing debate. See, e.g., Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004).
  5. Jay Willis, “Liberals Were Right to Fear the Supreme Court’s Election Intervention,” Atlantic, December 13, 2020.
  6. Thomas Hobbes, A Dialogue between a Philosopher and a Student, of the Common Laws of England, edited by Alan Cromartie and Quentin Skinner (Oxford University Press, 2005).
  7. Originalism itself is of relatively recent origin. See Reva Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Harvard Law Review, vol. 122, no. 1 (2008).
  8. Amy Coney Barrett and John Copeland Nagle, “Congressional Originalism,” University of Pennsylvania Journal of Constitutional Law, vol. 19, no. 1 (2016).
  9. For some of the positions in this debate, see Michael Stokes Paulsen, “The Intrinsically Corrupting Influence of Precedent,” Constitutional Commentary, vol. 22, no. 2 (2005); Randy E. Barnett, “Trumping Precedent with Original Meaning: Not as Radical as It Sounds,” Constitutional Commentary, vol. 22, no. 2 (2005).
  10. Brian Naylor, “Barrett Says She Does Not Consider Roe V. Wade ‘Super-Precedent,’” NPR, October 13, 2020.
  11. Bush v. Gore, 531 U.S. 98 (2000); Chad Flanders, “Please Don’t Cite This Case! The Precedential Value of Bush v. Gore,” Yale Law Journal Pocket Part, vol. 116 (November 7, 2006).
  12. Grutter v. Bollinger, 539 U.S. 306, 361 (2003) (Thomas, J., dissenting).
  13. Daniel Markovits, The Meritocracy Trap (Penguin, 2019), p. xi; see also Michael Sandel, The Tyranny of Merit (Farrar, Straus & Giroux, 2021). At the same time, most scholars on the Left, unlike Thomas, defend affirmative action.
  14. Clarence Thomas, My Grandfather’s Son: A Memoir (Harper Perennial, 2008), p. 193.
  15. See, e.g., In re Flynn, 961 F.3d 1215 (D.C. Cir., 2020), rev’d en banc by In re Flynn, 973 F.3d 74, D.C. Cir., 2020); Trump v. Mazars, 940 F.3d 71 (Rao, J., dissenting) (D.C. Cir., 2019), rev’d Trump v. Mazars, 140 S. Ct. 2019 (2020); Steven G. Calabresi and Saikrishna Prakash, “The President’s Power to Execute the Laws,” Yale Law Journal, vol. 104, no. 3, (1994).
  16. Seila Law LLC v. Consumer Financial Protection Bureau, 519 U.S. ___ (2020).
  17. Thomas, My Grandfather’s Son, p. 148.
  18. Ibid., pp. 145–46.
  19. See Stephen Kiehl, “A Second Amendment Quartet: Heller and McDonald in the Lower Courts,” Maryland Law Review, vol. 71, no. 4 (2012), discussing David S. Cohen, McDonald’s Paradoxical Legacy: State Restrictions of Non-citizens’ Gun Rights, Maryland Law Review, vol. 71, no. 4; Kurt Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge University Press, 2015).
  20. Jamal Greene, “Originalism’s Race Problem,” Denver University Law Review, vol. 88, no. 3 (2011).
Featured Image: The nine chairs of the Supreme Court justices lined up in the chamber. Phil Roeder / Flickr (CC BY 2.0).