In the Atlantic, Garrett Epps has a piece on Clarence Thomas. I like Epps. He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful. And his book on the 14th Amendment was quite enjoyable. But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas. In fact, I think Epps was quite unfair to Thomas. I thought I would respond to some of his major points.
First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC. Epps notes that the “experience left him embittered.” While Epps sort of presents both sides, he neglects an obvious inference. The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false. To be clear, I don’t know what happened between the two. But the failure to note this obvious explanation for Thomas’s reaction is disappointing.
Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.” This complaint is curious. Thomas joined the three other dissents, which did mention these precedents. Thomas wrote separately to discuss the original meaning. Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again.