Clarence Thomas Has Lost the Plot

The associate justice’s dissent in the tariffs case deserves some extra attention, because it his hopelessly uncoupled from law, history, and the Constitution.

To Thomas, almost every American judge who served over the past two centuries wasted their lives and careers. Rather than try to determine the Constitution’s meaning to the best of their ability, they should have all waited for Thomas to tell them what it actually meant.

The senior-most justice’s approach is hardly new. Thomas has spent decades calling for dozens, if not hundreds, of prior Supreme Court precedents to be overturned. He writes separately more often than any of his colleagues to expound upon his particular view of the Constitution, replete with numerous citations to his own work. As his own colleagues have said, Thomas does not believe in stare decisis, or in constraining himself by the court’s prior decisions.

Even by that standard, his dissent last week in Learning Resources v. Trump is astounding. In a 17-page opinion, Thomas sketched out an utterly alien vision of the separation of powers, the scope of the legislative branch’s powers, and the founding era, to argue that President Donald Trump had broad powers to levy tariffs against the American people—far beyond what any of his conservative colleagues could stomach.

“As a matter of original understanding, historical practice, and judicial precedent, the power to impose duties on imports is not within the core legislative power,” Thomas claimed. “Congress can therefore delegate the exercise of this power to the President.” Justice Neil Gorsuch, a frequent Thomas ally, broke with him to describe this approach, in a separate opinion, as “a sweeping theory” that “presents difficulties on its own,” in what can only be described as serious understatement.

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