Monday, October 31, 2016

Justice Thomas' 25 Years of Conservative Politics not Law

By Eric Segall

This year marks the 25th anniversary of Justice Clarence Thomas serving on the United States Supreme Court. Ever since Anita Hill came forward with allegations that he sexually harassed her, the second African-American jurist to sit on the Court has been perhaps this country’s most polarizing governmental official. Although he is a darling of the right for his strong statements about the importance of text and history to constitutional interpretation, his general embrace of conservative values, and his willingness to overturn precedents that the right disfavors, he is generally despised by the left for his consistent opposition to progressive goals such as the legalization of same-sex marriage, the separation of church and state, affirmative action, and federal regulation of our national economy. Justice Thomas’ controversial career is perhaps best symbolized by the failure of the recently opened Museum of African-American History to devote an exhibit to his career.

Jeffrey Toobin recently argued that after twenty-five years on the Court, Justice Thomas has left and will inevitably leave “very few fingerprints” because of his “radical” views.  Toobin is likely right but, in response, a former law clerk of Thomas’ wrote that “it is a shame that “in this day and age, a belief in applying the law as written—divorced from the preferences and predilections of the age—makes one a radical.” But that description of Justice Thomas is a myth. Far from applying a text and history approach to constitutional cases, Justice Thomas consistently reaches conservative results regardless of whether those results can be justified by reference to the actual words of the Constitution or their original meaning. I am not suggesting that Thomas follows the law any less than the other Justices simply that his frequent statements about text and history do not reflect how he actually votes.

In 1993, the federal government was working on a comprehensive computer database to use for background checks for gun purchases. As an interim measure, federal law required the Chief Law Enforcement Officers of the states to help implement the measure. The issue in the case was whether the federal government could use its enumerated powers, in this cased the power to regulate commerce among the states, to require state cooperation in a federal program.

Justice Scalia’s majority opinion conceded there was not one word in the United States Constitution suggesting there was such a limit on federal power. In addition, history was at best unclear on the issue. Nevertheless, the five conservatives including Justice Thomas concocted the rule that Congress could not “commandeer” state governments in this way. Regardless of whether as a policy matter such a rule makes sense, it cannot be gleaned from text or history.

Justice Thomas’ short concurrence, while joining in full the majority opinion, also argued that Congress’ power to regulate “commerce among the states” did not extend to the intrastate purchase and sale of firearms. Thomas was repeating an argument he, and he alone, has made repeatedly that Congress’ power to regulate “commerce among the states” does not extend to local economic activities that “substantially affect” commerce among the states.

Not only is this idea inconsistent with over 100 years of Supreme Court precedent (a fact that Thomas brushes aside), but it would deprive the Congress of the ability to do what was the major impetus behind ratification of the United States Constitution-giving Congress the power to regulate the national economy. Justice Thomas’ view is much more in tune with the Articles of Confederation, the first document to govern this country, than our current foundational law.

In making his argument, Justice Thomas completely ignores a part of the Constitution that has been an integral component of Congress’ powers since at least the early 19th century. Article I, Section 8 gives Congress the authority to pass all laws “necessary and proper” to carrying out its enumerated powers. The Supreme Court has consistently held that this provision allows Congress to use all reasonable or rational means to carrying out its lawful authority. Thus, Congress may use a draft to implement its duty to raise an army, and it may punish people who steal the mail so that it can run a Post Office even though neither a draft nor the ability to punish mail-theft is listed in the Constitution. Even Justice Scalia believed Congress has the power to regulate local practices that substantially affect commerce, as he argued when he voted to uphold the federal criminalization of the possession of marijuana that was never bought, sold or moved in commerce. Thus, just as Congress may prohibit the local non-commercial use of marijuana to assist in its overall War on Drugs, Congress may regulate the sale of guns as part of a more comprehensive plan to prevent dangerous people from owning firearms. Thomas’ view to the contrary ignores the plain text of the Necessary and Proper Clause, and its original meaning.

There are numerous other examples of Justice Thomas ignoring or distorting constitutional text and history. He has interpreted the phrase “another state” in the Eleventh Amendment to mean the “same state” so that states may be immune from federal lawsuits in ways not supported by the text; he has signed on to a rigid “personal injury” test that all federal plaintiffs must satisfy before having “standing to sue” in federal court even though neither Article III nor its history suggest such a requirement; and he has strongly rejected all affirmative action programs based on a principle of “color-blindness” that is nowhere in the text of the Constitution and is inconsistent with the original meaning of the Equal Protection Clause. The list goes on and on.

After twenty-five years on the Court, Justice Thomas has proven over and over that he doesn’t take text and history, or law, seriously at all. Instead, he is just a loyal, conservative, Republican with a strong libertarian bent-a politician through and through, and not a very effective one at that.


Shag from Brookline said...

Rick Pildes of NYU Law School has a 10/23/16 post at Balkinization on Justice Thomas' 25th anniversary on the Court with a link to an introduction on the subject focusing upon a program at NYU in which Thomas takes a part, a program that benefits certain students. I learned from this post and the link that Prof. Pildes clerked for the late Justice Thurgood Marshall. I submitted a comment but because "moderation" was in place my comment did not get posted. Here's the substance of that comment, in part:


There are two things that I cannot forgive Pres. George H.W. Bush for: (1) his 1988 campaign's Willie Horton ads that were an extension of the Republican Southern Strategy that Nixon started in the 1968 campaign, and (2) the nomination/appointment of Thomas to fill the vacancy resulting from Marshall's resigning. On that second point, back then there were thought of a Black, or Negro, seat on the Court following Marshall, the first African American on the Court, similar to a Jewish seat on the Court following Justice Brandeis. With the Jewish seat, successors to Brandeis to a significant extent continue some of the judicial philosophy of Brandeis. However, the selection of Thomas for the Black or Negro seat did not follow this, as it seems the goal was to perhaps undo much of what Marshall had accomplished on the Court and especially before that as a lawyer, in the trenches, leading the way to Brown v. Bd. of Educ. (1954) and the civil rights movement. Perhaps Rick might have some insights on this comment based upon his connections with Marshall.


I have no quarrel with the "moderation" process at Balkinization or at this Blog. But your post permits me the opportunity to comment on a matter that may not have been directly addressed in legal academia. If it has been addressed, I would appreciate a cite. (Query: What happens to comments after "moderation" that are not posted? Do they continue to exist?)

Joe said...

At the time, it was hard to think anyone would be worthy of the Brennan seat but Souter turned out to be a good pick. Judge Thomas was not a good pick for SCOTUS for various reasons imho, particularly inexperience. I spoke against someone who floated a 40 something district court judge to fill the Scalia seat too.

The Balkanization post shows he has a good side. He clearly works hard and respects the office, having the respect of his fellow justices. It is actually a good thing that he makes his strongly conservative libertarian views known, putting a different voice out there, though repeatedly leaving a lot to be desired as a matter of legal judgment.

But, he continues to be a concern, including an ideological bias. (Of course, all justices have one; it is a matter of degree and being honest about it.) It is not just being conservative. Can see a different conservative voice that could have been a better pick, if one whose views are not mine.

Shag from Brookline said...

As I recall, NH's Souter was recommended to Bush I by NH's Sununu and Sen. Rudman. Perhaps other advisors to Bush I knew little about how Souter might turn out on the Court

I'm wondering if Bush I's advisors were seeking out a replacement for Marshall, an African American, who might be 180 degrees from Marshall.

Joe said...

I read various people speak about Souter being a "surprise" especially in respect to abortion but he acted just like the sort of Liberal (sic) Republican someone like Sen. Rudman would support. Think any surprise there might have amounted to self-delusion.

Shag from Brookline said...

Joe, I just saw a re-run of last night's Charlie Rose and his interview of Jon Meacham re: paperback of latter's bio on Bush I, which I haven't read. In the course of the interview there was no discussion re: Bush I's Court appointments. On the chance you have read it, was there anything significant on the nomination of Thomas along the lines of my comments?