Ok, fine, I'll support my statements here, but you don't have to go away. Here are 35 cases in which Clarence Thomas voted to change established law. He even wanted to change some constitution law established in 1798. The man is an embrassment and as activist as any judge mentioned by those ranting about activist judges. ------------------------------------------------------------------------------------------------- Thomasops.pdf The Lone Opinions of Justice Clarence Thomas that Express a Willingness to Overrule or Revisit Constitutional Precedent Compiled by Jason Rylander, Community Rights Counsel Methodology: Listed below are 35 cases involving constitutional questions in which Justice Thomas wrote a lone concurring or dissenting opinion that calls for overruling or revisiting established constitutional precedent. Additional opinions urging revisions to constitutional precedent exist in which Thomas was joined by one or more justices, but the focus here is on cases in which Thomas has written separately. The list also does not include lone Thomas dissents that address purely statutory questions, such as his call in Georgia v. Ashcroft (2003) to reconsider interpretation of Section 2 of the Voting Rights Act. Case Opinion Position Hamdi v. Rumsfeld (2004) Dissenting “Cast[ing] doubt on the appropriateness or usefulness” of Mathews v. Eldridge, 424 U.S. 319 (1976) (establishing a balancing test to determine sufficiency of administrative procedures prior to the initial termination of benefits. Tennard v. Dretke (2004) Dissenting Urging overruling of Penry v. Lynaugh, 492 U.S. 302 (1989) (holding jurors may consider mental deficiencies of defendant in criminal sentencing). Elk Grove Unified School Dist. Concurring Rejecting incorporation of the Establishment Clause through the 14th v. Newdow (2004) Amendment; urging overrule of Lee v. Weisman, 505 U.S. 577 (1992). Sabri v. United States (2004) Concurring Urging the Court to reconsider its Commerce Clause precedents; Questioning scope of the Necessary and Proper Clause. Tennessee v. Lane (2004) Dissenting Calling “wrongly decided” the Court’s ruling in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003) (upholding application of Family and Medical Leave Act to the states). United States v. Lara (2004) Concurring Urging the Court to “reexamine the premises and logic of our tribal sovereignty cases.” Locke v. Davey (2004) Dissenting Expressing willingness to revisit precedents involving the Free Exercise of Religion clause, possibly including Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S 520 (1993), Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), and Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). McConnell v. FEC (2003) Conc./Diss. Urging overruling of Buckley v. Valeo, 424 U.S. 1 (1976), and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), to permit corporate and union political contributions. Thomas believes much of the campaign finance regulatory system violates the First Amendment. Thomas (with Scalia) also urged overruling Buckley in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Hillside Dairy, Inc. v. Lyons (2003) Conc./Diss. Stating that “the negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.” See also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997) (Thomas, J., joined by Scalia, J. and Rehnquist, C.J. as to Part I dissenting). Pharmaceutical Research and Concurring Expressing willingness to consider whether Spending Clause legislation Mfrs. of America v. Walsh (2003) gives rise to private right of action and rejecting the concept of the “negative Commerce Clause.” Ewing v. California (2003) Concurring Urging overrule of Solem v. Helm, 463 U.S. 277 (1983), which applied a proportionality test to the Cruel and Unusual Punishments Clause of the Eighth Amendment. Zelman v. Simmons-Harris (2002) Concurring Rejecting incorporation of the Establishment Clause to apply to the states through the Fourteenth Amendment. Thompson v. Western States Concurring Urging strict scrutiny in evaluating restrictions on commercial speech, Medical Center (2002) disagreeing with use of balancing test established in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n., 447 U.S. 557 (1980) Lorillard Tobacco Co. v. Reilly (2001) Concurring Urging strict scrutiny in evaluating restrictions on commercial speech. U.S. v. United Foods, Inc. (2001) Concurring Urging strict scrutiny in evaluating restrictions on commercial speech. Cooper Indus, Inc. v. Concurring Urging overrule of BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), Leatherman Tool Groups, Inc. (2001) which limits the size of punitive damage awards. American Trucking Assocs. v. Whitman (2001) Concurring Expressing willingness to revisit delegation jurisprudence and separation of powers. Troxel v. Granville (2000) Concurring Expressing possible willingness to revisit substantive due process cases and the meaning of the Privileges and Immunities Clause. United States v. Morrison (2000) Concurring expressed a willingness to reexamine fundamental aspects of the Court’s jurisprudence under the Commerce Clause. Greater New Orleans Broadcasting Ass’n Concurring Urging strict scrutiny in evaluating restrictions on commercial speech v. United States (1999) disagreeing with use of Central Hudson balancing test. Lilly v. Virginia (1999) Concurring Indicating that the protections of the Confrontation Clause should be limited to witnesses who testify at trial Mitchell v. United States (1999) Dissenting Urging overrule of Griffin v. California, 380 U.S. 609 (1965) and its progeny, including Carter v. Kentucky, 450 U.S. 288 (1981), which prohibited inferences based on a defendant’s silence in criminal cases. Eastern Enterprises v. Apfel (1998) Concurring Expressing willingness to reconsider Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798) and its progeny to extend prohibition of Ex Post Facto Clause to retroactive civil regulation. Printz v. United States (1997) Concurring Expressing “revisionist” view of Tenth Amendment and Commerce Clause, and urging reconsideration of Commerce Clause jurisprudence. Glickman v. Wileman Bros & Elliott Inc. (1997) Dissenting Urging strict scrutiny in evaluating restrictions on commercial speech, and disagreeing with use of Central Hudson balancing test. 44 Liquormart, Inc. v. Rhode Island (1996) Concurring Urging strict scrutiny in evaluating restrictions on commercial speech, and disagreeing with use of Central Hudson balancing test. Rosenberger v. Rector & Vistors of Concurring Urging reconsideration of “hopeless disarray” of Court’s Establishment Clause University of Virginia (1995) jurisprudence. Missouri v. Jenkins (1995) Concurring Questioning court’s role in integration, noting that “extravagant uses of judicial power” to integrate schools, prisons, and hospitals “are at odds with the history and tradition of the equity power and the Framers’ design.” United States v. Lopez (1995) Concurring expressed a willingness to reexamine fundamental aspects of the Court’s jurisprudence under the Commerce Clause Farmer v. Brennan (1994) Concurring Expressing willingness to overrule Estelle v. Gamble, 429 U.S. 97 (1976), and its progeny, which hold that the Eighth Amendment regulates prison conditions not imposed as part of a sentence. U.S. v. James Daniel Good Conc./Diss. Expressing willingness to reevaluate deference to legislature on matters of civil Real Property (1993) forfeiture. Johnson v. Texas (1993) Concurring Supporting reconsideration of Penry v. Lynaugh, 492 U.S. 302 (1989) (permitting consideration of mental deficiencies when imposing criminal sentence). Graham v. Collins (1993) Concurring Urging overrule of Penry v. Lynaugh, 492 U.S. 302 (1989) (permitting consideration of mental deficiencies when imposing criminal sentence), and expressing disagreement with Court on imposition of mandatory death sentences. Richmond v. Lewis (1992) Concurring Declaring Stringer v. Black, 503 U.S. 222 (1992) (which addresses use of aggravated factors in criminal sentencing), “wrongly decided.” Georgia v. McCollum (1992) Concurring Questioning use of Constitution to regulate preemptory challenges, suggesting need to reconsider Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), Batson v. Kentucky, 476 U.S. 79 (1986); Powers v. Ohio, 499 U.S. 400 (1991). -------------------------------------------------------------------------------------------------- Now let's look at one case in particular. Here it is
yo professed to have an intimate knowledge of judge thomas decisions, his reasoning, his intellectual process. i asked for you analysis of why his decisions are an embarassment, not merely a list of decisions you may or may not disagree with. and the opinion of people for the american way is completely irrelevant to our discussion, unless you're the author of the piece you linked to.
What are you talking about? I don't claim more than a passing familiarity with his writings. I said myself that I wasn't familiar with his opinions except what I read about when someone was comparing him to Scalia, and a few select others. You did start the thread with articles about Delay's tactics and I thought it genuine look at the issue until you slipped in the bit about Reid, which might not have been an attempt to direct attention from Delay(I was wrong to ascribe a motive to what you posted, I apologize). But it was at least an attempt at a 'misery loves company' style argument, to try and knock Reid down into the same league. I posted some of the reason why I think Thomas is an embarassment. You can disagree all day long, I don't care. Differing opinions are fine with me. Reid offered an opinion. Delay offered threats, warnings, and statements contradictory of our constitution.
Do you have a personal vendetta against me? I didn't claim intimate knowledge of Thomas' thinking process at all. I said I wasn't familiar with a number of his writings. I mentioned the only ones I read. You offered an opinion of his on a particular case. I showed a list of cases showing that Thomas has a mindset of overturning and revising constitutional law throughout the history of our country. The People for the American Way site merely explains why his take of constitutional law is an embarrasment. The guy would have ruled cases that would have weakened the voting rights act of '65. That alone is embarassing, especially when teamed with countless other decisions he's made weakening steps forward that our nation has taken in regards to constitutional law.
Check your history dude. One example. Another article. A quote: "Of the president's 215 judicial appointments thus far, just 10 have been blocked. Republicans were far more ruthless in stonewalling Clinton nominees, with one-third of his court appointments -- some 60 in total between 1995 and 2000 -- being denied up-or-down votes, largely by being bottled up behind closed doors in the Judiciary Committee. So much for the constitutionally sacred provision of "advice and consent" then." Democrats have held up one sixth of the total number of judicial nominees from Bush as the GOP let through during Clinton. Facts, they're not just for breakfast anymore!
How can you know he copies scalia if you don't claim more than a passing familiarity with his writings? if you claim he's an embarassment because you disagree with his decisions, you must also believe scalia and rhenquist are embarassments, non?
There was at least one filibuster that was detailed in the above links and it still doesn't change the fact that the GOP used procedural rules (filibuster falls under this heading too) to stop SIX TIMES AS MANY NOMINEES as the Dems are not comfortable confirming for Bush. The very definition of wanting to have your cake and eat it too.
I thought I put a smiley face by that one. I was only half serious. I guess I didn't. Actually there is a difference between Scalia and Thomas. Scalia said recently that Thomas believes in correcting past decisions he disagrees with. Scalia doesn't go that far. It's that kind of 'activism' that makes him an embarassment along with his decisions.
What is your point, basso? None of us "must" do anything here, except abide by the rules Clutch has laid down for us to follow. It sounds pretty silly for me to even mention that, doesn't it? But not as silly as your continued myopia regarding Thomas. You wanted examples of why he's considered unqualified and an embarrassment as a Supreme Court Justice. When given some, you ignore them, or try to parse the reply, which is hilarious considering the parsing you're doing here. Why don't you give us a succinct post telling us why Thomas was a good choice as a Supreme Court Justice. Defend him. And the repeated ignoring of what the Republicans did to block Clinton's appointments, in much greater numbers, while whining about the 10 being blocked now is beyond tiresome. It's absurd. You don't want to have your cake and eat it too... you want the whole damn bakery, and to those who disagree? Let them eat cake. Keep D&D Civil!!
I just love the use of adjectives without logic. If appellate court judges were not filibustered...then fairness would not necessitate the appointment of liberal appellate judges. Ridiculous? Why? Because it wouldn't be beneficial to your side? It would be bizarre politically - but it would be equitable. And it would be no more bizarre than one side forgiving the other for shameful, anti-democratic tactics...by turning the other cheek. If you want equity, not merely benefits for your side, have an independent review panel determine how many judges "should" have been appointed during the Clinton administration that were not...and appoint that # of liberal judges. That's the only equitable result. Oh wait. Are you not concerned with equity? Your smokescreen isn't even subtle.
I forgot to mention that while I don't find Scalia as bad as Thomas, I do find him an embarassment as well. On that I disagree with REid. I find Scalia an embarassment because of his personal hunting trips with the VP and then refusal to remove himself from cases involving the VP. I think it is either a conflict of interest, or presents such a clear appearance of one, that he should remove himself from those cases, to avoid the appearence of impropriety in our nations highest court.
i could agree to this plan as long as we could go back to the source and find a place for Robert Bork on the Supreme Court.
how ironic, in a thread that started as a conservative rebuke of conservatives for criticising activist judges, that liberals see nothing wrong with pounding judges with whom they disagree for their supposed activism. in context, your's, and deck's charges of my only wanting what's good for conservatives ring particularly hollow.
well, unlike everyone else here, I actually have read a lot of Thomas' opinions. I wouldn't go as far to say that he is a complete embarassment, but he does add less to the table than all the other judges and pales in comparison to the legal rhetoric ability of Justice Scalia. Thomas has written a few good opinions on the race issue, one of his few issues where he actually differs slightly from Scalia. While I don't agree with all of it, he does encapsulate an important side of the argument in the debate. While his argument is valid, some find it hypocritical since he was accepted into both his college (Holy Cross) and law school (Yale) under affirmative action programs. I think he also does a good job in showing that not all black men have liberal ideas and push for affirmative action unlike his late bizzaro black justice, Marshall, who in many respects is the complete opposite of Thomas. It's also a win on the conservative's side to actually manage to appoint a justice that didn't switch camps but at the cost of being extreme. For now, it is simply too early to say on Thomas, he's going to be around for a while. He is still the "rookie" conservative justice, and after years of being relatively quiet in distinguishing opinions from Scalia and Rehnquizzle, he is starting to show that he actually does have opinions of his own. Wait until after Rehnquist drops out before Thomsas will really begin distinguishing himself. However, other than on race, Thomas does not seem to have the same punch that Scalia has in his opinions, which adds to the popular opinion that he is a weak judge. In my opinion, although I disagree with a lot of Thomas' opinions, I think he does contribute to the supreme court. I believe a court is working if three judges piss you off, three you love and three you are iffy about. The court is supposed to represent the diversity of opinion, otherwise, with a monopoly, much of the country will be voiceless. Let's remember that in the legal world, there are very few right answers, that's why the justices write "opinions". None of the cases reaching the supreme court are supposed to be answered easily.
legal affairs says he's one of the top 20 legal thinkers in america, along w/ rhenquist and scalia, o'connor, and ginsberg. there a couple of other supremes missing from the list, but perhaps they were just to embarrassing to include. http://legalaffairs.org/poll/ -- Legal Thinkers Poll In our January|February issue, Legal Affairs asked its readers who they think the country's most influential and important legal thinkers are. We thought we might be sparking a controversial conversation, and we were right: Readers expressed their opinions through letters, e-mails, and at least one newspaper article written to rally support for a local candidate. Our call also reverberated in the blogosphere, where we were roundly criticized for list-making. Look for bloggers to change their tune when they see how well-represented they are on our list. Polling is a tricky science, but we were heartened by the strong sample size we received. Nearly 5,000 voters weighed in to tell us whose ideas are shaping today's legal culture. Results are of course always influenced by how you ask your question and who shows up to answer it. Our format, soliciting votes on the Internet, certainly seems to have skewed our results. Thanks to the wonders of the all-seeing Internet, we were able to notice that a great many voters arrived at our cyberspace polling station directly from the doorstep of a short list of mostly conservative legal blogs. (Makes you regret not voting for a privacy hawk like Jeff Rosen, no?) Our list lists to the right a bit, but it also interestingly betrays a presumably non-partisan bias among voters toward judges and academics over journalists and other commentators. Our readers seem to think those who interpret law are more influential than those who report on it. Our final results are divided into three categories of influential legal thinkers: academics, judges, and commentators. We've chosen one thinker in each category to highlight with a short profile, pitched to answer a new question, "What makes this thinker influential?" Academics Akhil Reed Amar Erwin Chemerinsky Alan M. Dershowitz Richard Epstein Lawrence Lessig Cass R. Sunstein Lawrence H. Tribe Eugene Volokh Judges Frank Easterbrook Ruth Bader Ginsburg Alex Kozinski Sandra Day O'Connor Richard Posner William Rehnquist Antonin Scalia Clarence Thomas Commentators Paul Gigot Dahlia Lithwick Glenn Harlan Reynolds Nina Totenberg Peerless Jurist Most members of the current Supreme Court are known for something besides their legal reasoning. Sandra Day O'Connor was the first woman on the court, Ruth Bader Ginsburg was the second, and Clarence Thomas is the justice who survived a brutal confirmation process. If his peers on the court are known for who they are, Antonin Scalia is known for what he does. What he does is write smart and interesting opinions, and write them well. Scalia has become influential the old-fashioned way—he's earned it. Scalia claims to ground his judicial philosophy in originalism, adherence to the constitutional ideals laid out by the nation's founders. During his 18 years on the court, he has helped make originalism first respectable and now ubiquitous in the legal academy. Scalia's detractors—and they are numerous—note that Scalia breaks with originalism when reading the Constitution with a magnifying glass doesn't suit his political purpose. They cite, for example, his ruling against affirmative action without appearing to consider the original meaning of the 14th Amendment. By dismissing Florida state law in Bush v. Gore, his enemies say, he similarly betrayed federalism, another philosophy dear to his heart. But there is one ideal Scalia never strays from: clarity. His opinions are lucid and well structured, and he eviscerates his colleagues for muddling arguments and ducking big questions. To the delight of law students, legal scholars, and anyone who's read one of his opinions or listened to him during oral arguments, though, Scalia eviscerates with style and a sense of humor. Scalia once declared victory while leading a tennis match 5-4—a testament to his wit and his affinity for winning. "On a bench lined with solemn gray figures who often sat as silently as pigeons on a railing, Scalia stood out like a talking parrot," wrote the Los Angeles Times' Supreme Court reporter David Savage in 1992. According to our poll, the justice still makes his admirers coo. Boy Wonder Richard Posner was once the guiding light for legal academics charting a path to public intellectualism. His model: Augment a stellar scholarly reputation with a second career as a judge or lawyer; contribute regular commentary to places like The New York Times and The New Republic; please the media with a strong opinion on practically everything; and churn out a new book every six months (or at least make it feel like every six months). The rapid rise of Professor Eugene Volokh, however, suggests a new path. Not yet 37, Volokh has become famous enough to appear on our list despite never having written a general-interest book or taken a high profile case to court. Volokh, whose family emigrated from Kiev not long after his seventh birthday, is undeniably prodigious. By age 15, he had a B.S. from UCLA and was holding down a job as a computer programmer. He returned to UCLA to complete law school, landed two coveted clerkships—Ninth Circuit rabble-rouser Alex Kozinski followed by Justice Sandra Day O'Connor—and then joined the faculty of his alma mater. In a little over a decade, Volokh has produced a steady stream of provocative law review articles, establishing his bona fides in such disparate fields as gun control (which he vigorously opposes), free speech (which he feels is being squeezed by sexual harassment laws), and Yiddish (which he believes is "supplanting Latin as the spice in American legal argot"). He has been a visiting scholar at Stanford and Harvard and has literally written the book on being successful at academic legal writing. According to those who track such things, Professor Volokh has been cited by his peers over 800 times, putting him in a league more or less of his own. Impressive stuff, but enough to place him ahead of old-timers like Cass Sunstein, Ronald Dworkin, Larry Tribe, and Richard Epstein? Probably not, save for the fact that Volokh is also the founder of the eponymous Volokh Conspiracy, a blog launched in 2002. Not everything Volokh blogs about is strictly legal (posts like "Black Russian Cake" and his tireless, and tiresome, crusade against Slate's Bushisms come to mind), but in contrast to the approach of Glenn "Instapundit" Reynolds, a fellow law professor who is the USAToday of internet commentators, Professor Volokh avoids writing on topics outside his expertise. His site is now visited over 10,000 times per day. It's a pretty safe guess as to who most of those visitors are: law professors, judges, lawyers, and apparently our readers. The Chronicles of Dahlia In 1999, in need of a last minute fill-in to cover the Microsoft antitrust trial, the online magazine Slate turned to a friend of a friend of a former staffer, a Canadian-born lawyer named Dahlia Lithwick. "No one knew a thing about her writing," recalls Jodi Kantor, an editor there at the time. In her first dispatch, Dahlia (who would soon attain one-name status among legal junkies) introduced herself, explaining that following graduation (and a clerkship she didn't mention) she passed on the corporate route and joined a family law practice in Nevada. "No difference really," she joked about the work. "Bigger belt buckles." Until there was Dahlia, Supreme Court coverage was left mainly to belt-and-suspender types: chroniclers of the court whose dispatches tended to be dutiful, deferential, and dull. Dahlia, on the other hand, approached her coverage with irreverence. Her writing has won her more than her share of admirers (and at least one creepy internet fan page), not only for her humor but also for her willingness to have fun at the justices' expense. Dahlia has the ability to make otherwise regal justices seem like middling actors in a small-town drama. When a notoriously clothes-obsessed Rehnquist interrupted proceedings to ask a female reporter to remove her headscarf, Dahlia wrote, "This from a man seemingly undistracted by a colleague seated three chairs to his left, lolling backward in his chair with his eyes shut." In a case about fake child p*rnography, Justice Scalia took issue with the suggestion of Justice John Paul Stevens that "Romeo and Juliet" sexualizes children. "Gee, you've seen a different version than me," Scalia quipped. Dahlia one-upped him: "Ten-to-1 odds that Clarence Thomas has seen the Stevens version." For all its billowing pomp and septuagenarian jurists, the Supreme Court has never been able to fool Dahlia into thinking that its justices are all that different from, say, family-court judges in Nevada. Those judges must be thanking their lucky stars that Dahlia turned her attention to skewering SCOTUS and left them and their belt buckles alone.
I pounded Scalia for conflict of interest. That is different than his decisions. I pounded Thomas for a pattern of decisions, not just one, and agreed with Scalia's own criticism of Thomas' judicial philosophy. But I don't have a problem with attacking activism when it can be shown to truly be activism, as I believe is the case of Thomas' record. Most of the decisions the conservatives are attacking as activism are the result of one or two cases that the conservatives didn't like, and they came at rulings of judges appointed by the GOP. (not directed at you, Basso) The moral of the story for folks like Delay is that we need to not approve GOP nominated judges.
In 8 years of being a lawyer or a law student, I have never even heard of "legal affairs", sounds like a good title for a porno though. Basso, I've been involved in the legal establishment for a while now and have friends who lean both left and right, as did my professors back at U of C -- many of whom are on the very same legal affairs list you cited (ironically I did awful in sunsteins (lefty) classes and really well in Epstein's (hardcore libertarian con) -- but I have never heard anybody give serious credence to a Thomas opinion or apprise him as a serious thinker in any area.
the larger point here, and it applies indeppendently of thomas' brain power, is that liberals and many prominent conservatives find much of the recent criticism of the judiciary from republican members of congress untenable, yet, when such criticism comes from the left, and is equally unfounded, you and your fellow travelers find nothing wrong with it. if you care about congress interfering in the juducuary, the same standards should apply accross the political spectrum. ...and something needs to be done to about the confirmation process, it's clearly broken. i suppose we could wait until the next democratic administration to make it more "equitable" in some eyes, assuming you think a democratic admin is imminent. the economist has a nice chart showing how the process has deteriorated since GWB became president. protests that the democrats are being no less obstructionist than their predecessors are off base.
