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SCOTUS: 20 years of Clarence Thomas

Discussion in 'BBS Hangout: Debate & Discussion' started by basso, Oct 22, 2011.

  1. basso

    basso Contributing Member
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    great article on Justice Thomas, "the tea party's intellectual godfather."

    --
    Twenty Years of Justice Thomas
    By JOHN YOO

    [​IMG]

    This weekend marks the 20th anniversary of Clarence Thomas's appointment to the Supreme Court. In his first two decades on the bench, Justice Thomas has established himself as the original Constitution's greatest defender against elite efforts at social engineering. His stances for limited government and individual freedom make him the left's lightning rod and the tea party's intellectual godfather. And he is only halfway through the 40 years he may sit on the high court.

    Justice Thomas's two decades on the bench show the simple power of ideas over the pettiness of our politics. Media and academic elites have spent the last 20 years trying to marginalize him by drawing a portrait of a man stung by his confirmation, angry at his rejection by the civil rights community, and a blind follower of fellow conservatives. But Justice Thomas has broken through this partisan fog to convince the court to adopt many of his positions, and to become a beacon to the grass-roots movement to restrain government spending and reduce the size of the welfare state.

    Clarence Thomas set the table for the tea party by making originalism fashionable again. Many appointees to the court enjoy its role as arbiter of society's most divisive questions—race, abortion, religion, gay rights and national security—and show little desire to control their own power. Antonin Scalia, at best, thinks interpreting the Constitution based on its original meaning is "the lesser evil," as he wrote in a 1989 law journal article, because it prevents judges from pursuing their own personal policies. Justice Thomas, however, thinks that the meaning of the Constitution held at its ratification binds the United States as a political community, and that decades of precedent must be scraped off the original Constitution like barnacles on a ship's hull.

    In United States v. Lopez (1995), which held unconstitutional a federal law banning guns in school zones as beyond Congress's powers, Justice Thomas called on the court to reverse decades of case law that had transformed the legislature's authority "[t]o regulate Commerce . . . among the several States" into what he described as a limitless "police power." He would restrict federal laws to commercial activity that crosses state borders and end national control over manufacturing and agriculture.

    Any case that allows Congress to regulate anything that has "a substantial effect" on interstate commerce "is but an innovation of the 20th century," wrote Justice Thomas in a concurring opinion. Taken to its conclusion, his view would drive a stake into the heart of the New Deal state, which would have to return policy over welfare, health care, education, labor and crime to the states where they belong. Tea partiers who oppose wasteful federal spending and want a smaller national government are following in Justice Thomas's intellectual footsteps.

    Strictly obeying the original meaning of the Constitution can lead Justice Thomas to liberal results. Based on his reading of the Commerce Clause, for example, he unsuccessfully urged his brethren to strike down most of the federal drug laws—which made him an unlikely hero in my hometown of Berkeley, Calif., if only for a day. He joined a majority to invalidate thousands of criminal sentences because judges, instead of juries, had found the vital facts—in violation of the Bill of Rights.

    Justice Thomas opposed the court's pro-business decisions that capped punitive damages because he believes the issue is for the state courts to decide. He voted to suppress evidence produced by police using thermal-imaging technology to scan homes for mar1juana growth as unreasonable searches in violation of the Fourth Amendment. Because the Framers wanted broad protections for political speech, Justice Thomas joined opinions protecting violent movies and offensive protesters at military funerals.

    Originalism no doubt gives Justice Thomas strong conservative views on constitutional law. He called for an individual right to own guns before it was cool; he would return control over abortion to the states; and he allows for more religion in the public square—but only because the Constitution entrenches a vision of limited government, broad economic and political freedoms, and a vibrant civil society.

    Justice Thomas supplements the Constitution's inherently conservative nature with a perspective that only someone with his unique background offers. His self-reliant rise from poverty gives him a deep skepticism of social engineering by intellectual elites.

    Not surprisingly, Justice Thomas reserves his deepest scorn for the government's use of race to determine society's winners and losers. In his dissent from the court's approval of affirmative action in higher education in Grutter v. Bollinger (2003), he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas has declared himself on the side of individual effort and choice against elite visions of social justice: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."

    In Adarand v. Pena (1995), striking down racial quotas in government contracting, Justice Thomas traced the nation's commitment to racial equality through the Constitution directly to the Declaration of Independence's promise that all men are created equal, just as did Abraham Lincoln. Affirmative action is "racial paternalism," he wrote, whose "unintended consequences can be as poisonous and pernicious as any other form of discrimination."

    There is a price for Clarence Thomas's 20 years of purity of principle and clarity of expression. He will never be the builder of coalitions, the leader of majorities, or the rudderless vote swinging in the middle. He rejects Justice William Brennan's famous description of the most important rule on the Supreme Court: the rule of five votes. He happily forswears the siren song of political popularity and judicial compromise necessary to sit in the majority.

    Instead, he is swinging for the fences. The true audience for his call for a return to Founding principles is the American people, not a few federal judges.

    In his first two decades, not only has the court steadily moved in his direction, but also an unprecedented grass-roots movement has taken up his call for limited government and individual freedom. Imagine what he will do in the next 20 years.

    Mr. Yoo, a law professor at the University of California, Berkeley, and an American Enterprise Institute scholar, is co-editor of the recently released "Confronting Terror" (Encounter 2011). He was a law clerk for Justice Thomas from 1994-1995.
     
    tinman likes this.
  2. Rocket River

    Rocket River Member

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    Has he spoken in court yet?

    Rocket River
     
  3. Nook

    Nook Member

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    Are you seriously posting something by John Yoo?

    The guy should be in prison.
     
    Invisible Fan likes this.
  4. basso

    basso Contributing Member
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    the force of his intellect speaks for him.
     
  5. Nook

    Nook Member

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    No... he knows his place...
     
  6. basso

    basso Contributing Member
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    Obama has adopted every policy he advocated.
     
  7. basso

    basso Contributing Member
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    rayciss.
     
  8. Nook

    Nook Member

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    Pretty damn close to accurate sadly. Pandora's box has been flung WIDE open.... but, a different issue.

    I cannot believe that John Yoo is even allowed in proper society... well, I am not surprised, but disapointed.
     
  9. Nook

    Nook Member

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    Indeed... it was racist of me to point it out... then again, under Clarence Thomas' Constitutional interpretation's he would still be a slave, so it would be okay.

    Watch out for pubes in the coke can too... I hear he is a trickster.
     
  10. basso

    basso Contributing Member
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    thanks for admitting it. i've always suspected, scratch a democrat/progressive and you'll find a racist, anti-semite fascist.
     
    blue_eyed_devil likes this.
  11. Rashmon

    Rashmon Contributing Member

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    Shouldn't Scalia get that credit?
     
  12. basso

    basso Contributing Member
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    'cause the white guy is smarter than the black guy?
     
  13. gwayneco

    gwayneco Contributing Member

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    An eternal truth to be sure.
     
  14. Rashmon

    Rashmon Contributing Member

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    How do you keep a Thomas fan in suspense?
     
  15. StupidMoniker

    StupidMoniker I lost a bet
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    Justice Thomas has long made clear his disdain for the role of oral argument in Supreme Court cases. Lawyers spend a long time crafting their written arguments in which they are able to lay out their arguments and document support for them. There is certainly a legitimate argument that these carefully crafted documents are much better indicators of the strength of the positions of each side than a half hour or so of responses to questions from the bench.
     
  16. Dairy Ashford

    Dairy Ashford Member

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    Even though I'm inclined to believe Anita Hill and assume she had no choice once subpoenaed by Congress, I'd concede that Thomas's confirmation hearings probably exposed some of the petty partisanship that used to go on in those things; like John Tower getting screwed out of Secretary of Defense.

    Also, Herbert Walker has to be commended for preserving the Marshall slot while not blindly contradicting his own values: it's probably not racist to assume there weren't alot of experienced, conservative black judges back then. Nice little last gasp of Rockefeller Republicanism.
     
  17. Northside Storm

    Northside Storm Contributing Member

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    http://www.tnr.com/blog/open-university/clarence-thomas-not-mr-constitution
     
  18. rocketsjudoka

    rocketsjudoka Contributing Member

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    I understand that is his reasoning but it shows a lack of intellectual curiosity on Justice Thomas' part to not show any desire to delve deeper into the arguments of the lawyers' before the court.

    While I don't always agree with Scalia's legal opinions I respect the fact that he shows a willingness to engage the arguments and challenge the lawyers.
     
  19. StupidMoniker

    StupidMoniker I lost a bet
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    Justice Thomas would tell you that there is no real delving going on during oral argument. Often the questions that are asked are not even asked for that purpose, but rather to make a point to the people on the fence/leaning the other way. Do you really think you are going to get a more cogent, thorough, and well supported argument to a question asked on the fly when the attorney has no time to consider it than when the attorney can spend months drafting a brief? I would guess it is not a lack of intellectual curiosity and instead a recognition of the relative uselessness of oral argument in the appellate system.
     
  20. rocketsjudoka

    rocketsjudoka Contributing Member

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    The point of having oral argument is to see how well the arguments of the lawyers can stand up to the scrutiny of having them challenged on the fly in regard to sometimes novel challenges from the justices. Its the same reasoning behind why doctorate candidates have to orally defend their dissertations.

    Our legal tradition is partly based on the Socratic method where question and answer is central. Justice Thomas is entitled to ignore that but that shows a lack of appreciation for that method along with a lack of intellectual curiosity.
     

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