CLARENCE THOMAS'S CHALLENGE TO THE REHNQUIST COURT'S VISION OF REPRESENTATIVE GOVERNMENT

The last few weeks have revealed some dramatic divisions within the Supreme Court. On February 21, in Board of Trustees of University of Alabama v. Garrett, a 5-4 "conservative" majority ruled that Congress violated the Eleventh Amendment when it authorized private damages suits for state violations of the Americans With Disabilities Act. On February 28, in Legal Services Corp. v. Velazquez, a different 5-4 "liberal" majority ruled that Congress violated the First Amendment when it forbade lawyers receiving federal dollars to represent indigent clients from challenging the validity of welfare laws.

These two cases provide a reminder that the Court remains sharply divided along ideological lines. Yet such an assessment is too simple. For example, Justice Anthony Kennedy, often described as a conservative, was in the majority in both Garrett and Velazquez, joining the conservatives in the former and the liberals in the latter. Indeed, on free speech issues, Justice Kennedy is probably the Court's most liberal member.

Meanwhile, two unanimous decisions sandwiched between Garret and Velazquez revealed a more subtle cleavage on the Court. In both Whitman v. American Trucking Associations, Inc., and Cook v. Gralike, Justice Clarence Thomas went along with the Court's rulings but indicated that he did so only because the parties had not pressed what he thought might be winning arguments. Justice Thomas's separate concurrences in these cases raise fundamental questions about the nature of representative government in the United States.

In American Trucking, the Supreme Court held that Congress had acted constitutionally when it passed a statute instructing the Environmental Protection Agency to set "ambient air quality standards the attainment and maintenance of which . . . are requisite to protect the public health."

The U.S. Court of Appeals for the D.C. Circuit had held that in the statute, Congress had unconstitutionally delegated some of its legislative power to the EPA. According to the lower court, the statute contained no "intelligible principle" by which the agency could determine how much of each regulated pollutant was too much. As a result, the lower court believed the statute unconstitutionally transformed the EPA into, in effect, a quasi-legislature.

The Supreme Court, however, unanimously disagreed. In an opinion by Justice Antonin Scalia, the Court found that "public health" provided a sufficiently intelligible principle. It was no vaguer, the Court noted, than, for example, statutory delegations authorizing the Attorney General to designate a drug as a controlled substance "to avoid an imminent hazard to the public safety," or authorizing the Occupational Safety and Health Administration to set worker safety standards that assure that "to the extent feasible . . . no employee will suffer any impairment of health." Just as those statutes were valid, the Court concluded, so was the Clean Air Act provision at issue in American Trucking.

Justice Thomas agreed with the Court that the "intelligible principle" test was satisfied — and thus voted with the majority. However, he also expressed the belief that this principle permits Congress to pass the buck to administrative agencies in violation of the original understanding of the Constitution. Thus, he stated that if the parties raised the issue in another case, he "would be willing to address the question whether [the Court's] delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers."

Justice Thomas staked out a similar position in Cook v. Gralike. That case presented a challenge to a Missouri law.

The Missouri law imposed harsh consequences on candidates for Congress who failed to support a constitutional amendment limiting Senators' and Representatives' terms, or who failed to pledge to abide by term limits. Under the law, such candidates would have such statements as "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" and "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" printed on the ballot next to their names. Obviously, the law's effect would have been to pressure candidates into supporting a term limits amendment, and abiding by term limits themselves, even absent such an amendment.

The Supreme Court unanimously invalidated the law. The majority opinion by Justice John Paul Stevens, writing on behalf of himself and five other justices, relied principally on a 1995 precedent, U.S. Term Limits v. Thornton, that held that the states do not have the constitutional authority to set term limits for members of Congress. These six Justices saw the Missouri law as an illicit attempt to circumvent that ruling.

Chief Justice Rehnquist and Justice Sandra Day O'Connor concurred in the judgment, reasoning that the Missouri law violated "the First Amendment right of a political candidate, once lawfully on the ballot, to have his name appear unaccompanied by pejorative language required by the State."

And then there was Justice Thomas — who presumably did not agree with the First Amendment argument, since he did not join the Rehnquist/O'Connor concurrence, and did not agree with the majority's invocation of Thornton, the original term limits decision, either. He wrote separately to say that if Missouri had asked the Court to overrule the term limits decision — from which he and three other Justices dissented at the time — he would be willing to do so. But, as in American Trucking, he was unwilling to rule on the basis of an argument that was not pressed.

Taken together, Justice Thomas's intimations in Cook v. Gralike and American Trucking reflect a striking vision of American government. In his view, state legislatures should be permitted to hold members of Congress on a short tether (by imposing term limits and directing their votes), while members of Congress must take full responsibility for the actions of the national government rather than delegating important decisions (such as to how much of a pollutant is too much) to administrative agencies, and thereby ducking accountability.

By contrast, all of the other Justices would allow much less direct control over the national agenda by legislatures — and even by voters. Members of Congress are, for these Justices, representatives but not delegates. They come to Washington to represent their districts, not simply to carry out instructions from the folks back home.

Moreover, according to the eight Justices, national policy is further removed from direct control of the people or the states because once in Washington, members of Congress may delegate the details of their work to bureaucrats. These Justices see such delegation as inevitable, given the complexity of modern life; it is simply impossible for Congress to fill in all the details of all the statutes it writes.

Two features of this debate merit notice. First, although the Justices defend their contrasting visions as simply rooted in the text, structure and history of the Constitution, the constitutional provisions at issue are sufficiently open-ended to admit of various interpretations. The Justices thus prefer one vision or another based in part on normative grounds and perhaps should articulate those grounds.

Second, Justice Thomas's isolation from the rest of the Court on these issues shows that he is not — despite the common caricature — Justice Scalia's clone. Indeed, in some respects, his disagreement with the Court's vision of representative democracy is as fundamental as the more familiar 5-4 divisions over states' rights, abortion, affirmative action, and the other hot-button issues that the Court confronts.