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U.S. Constitution Title: Giving Thomas His Due [USSC] For political observers, the story of the Supreme Court’s recently concluded term was the clash of two great colliding forces. On one side stood the Court’s always-unified liberal bloc, fortified by the apostasies of Republican-appointed Justice Anthony Kennedy and sometimes Chief Justice John Roberts, most prominently in cases involving same-sex marriage and Obamacare. On the other side stood Justice Antonin Scalia, a lion in winter, caustic and witty in his dissents. But for close watchers of the Court, another theme ran through this term: the breadth and depth of Justice Clarence Thomas’s institutional critique of the Court itself for straying from the Constitution, failing to apply its own precedents evenhandedly, neglecting the separation of powers and federalism, and allowing itself to be manipulated by runaway executive agencies. Like a medieval monk preserving Western culture through the Dark Ages, Thomas soldiered doggedly on, carrying the largest writing workload on the Court, pressing his point in cases small and large, sometimes at odds with his conservative colleagues, often alone. Perhaps history will never return to the path he is marking, but no one can say we weren’t warned. Supreme Court justices are often little known or understood by the general public, and in Thomas’s case, his image is further obscured by his race, the controversies surrounding his 1991 confirmation, and his famous refusal to ask questions at oral argument. Thomas’s critics outside the legal profession tend to fall back on open attacks on his race (a “clown in blackface,” said Star Trek actor, Facebook meme-sharer, and gay-rights crusader George Takei recently) or unsubtly coded attacks (such as Harry Reid’s assertion that Thomas wasn’t smart or a good writer like Scalia, though Reid couldn’t name any of his opinions). But behind the slings and arrows of politics and punditry, Justice Thomas has been this term’s workhorse, and not for the first time. According to SCOTUSBlog, he wrote more opinions than any other justice this term, 37 (Justice Samuel Alito was second with 30, Justice Elena Kagan last with 11); the most concurring opinions, 11 (Alito was second with 9, Roberts and Kagan last with 2 each); the most dissenting opinions, 19 (Scalia was second with 15, Justice Ruth Bader Ginsburg last with just 1); and the most total pages of opinions, 432. This is the second time in three years that Thomas has written the most opinions, and they are not filled with breezy rhetoric, but thick with citation to the roots of our constitutional system, from the Magna Carta to John Locke to Blackstone’s Commentaries. Standing Apart, But mere volume is not the measure of Thomas’s jurisprudence. For that, one must take a closer look at the many times he has stood against the prevailing winds, warning his colleagues that the Court should consider its own errors and limitations. The cases in which he has split from Scalia—his closest colleague philosophically—are telling. In Johnson v. United States, the Court struck down part of the 1984 Armed Career Criminal Act, which greatly enhances prison sentences for felons in possession of a firearm who have three prior convictions for a “violent felony.” Scalia wrote the majority opinion. It was a sweet victory for Scalia, who in several prior dissents had argued that the ACCA was unconstitutionally vague in defining “violent felony.” Thomas—noting that he had always thought the ACCA unconstitutional for allowing a judge to impose a long sentence based on facts not found by a jury—nonetheless refused to join the opinion on the grounds that the “void for vagueness” doctrine should be reconsidered. He cited its (comparatively) recent origin, which he traced to 1914 (before that, courts simply refused to enforce criminal statutes in cases where their application was unclear). And he lamented that the Court has not applied the doctrine consistently: This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. . . . Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels. Thomas traced how the Court’s “vagueness” cases have struck down whatever kind of law was out of fashion with the Court’s majority in a given era, from economic regulation in the pre-New Deal years (but not after) to obscenity laws in the 1940s to abortion laws (but not laws regulating speech by abortion protesters) today. Johnson is not the only example this term of Thomas calling out the Court’s own institutional biases. The Court split 5-4 in Arizona State Legislature v. Arizona Independent Redistricting Commission on whether an Arizona ballot initiative could give an “independent” commission power to draw congressional district lines, despite the Constitution’s explicit command that rules for elections to Congress “shall be prescribed in each State by the Legislature thereof.” Ginsburg’s opinion for the Court held that a ballot initiative could be a rule of “the Legislature,” given that the Arizona constitution (unlike the federal Constitution) grants some legislative power to the voters through initiatives. Thomas, tracing the long history of the Court’s finding of new and different ways to invalidate and frustrate state ballot initiatives in areas ranging from marriage to term limits to immigration to affirmative action, was blistering: Reading today’s opinion, one would think the Court is a great defender of direct democracy in the States. . . . These sentiments are difficult to accept. The conduct of the Court in so many other cases reveals a different attitude toward the States in general and ballot initiatives in particular. . . . The Court’s characterization of this as direct democracy at its best is rather like praising a plebiscite in a “banana republic” that installs a strongman as President for Life. And wrapping the analysis in a cloak of federalism does little to conceal the flaws in the Court’s reasoning. I would dispense with the faux federalism and would instead treat the States in an evenhanded manner. That means applying the Constitution as written. In Michigan v. EPA, the Court considered a provision of the Clean Air Act Amendments of 1990 that required the EPA to study emissions by power plants and stated that the EPA “shall regulate” the plants if the EPA “finds” that “regulation is appropriate and necessary after considering the results of the study.” The EPA concluded that it did not need to consider the nearly $10 billion cost of regulation in making this finding. Scalia’s majority opinion (which Thomas joined) refused to defer to the agency’s reading of the statute and found that this language, for reasons of statutory context, required the EPA to consider costs. Kagan’s dissent, for the Court’s four liberals, did not quarrel with this reading of the language but argued mainly that it was sufficient to consider costs later in the process of shaping the scope of regulation. Only Thomas, concurring alone, argued that the “appropriate and necessary” language was so open-ended as to be a potentially unconstitutional delegation of Congress’s law-making power to the agency, and that the EPA’s request for the Court to defer to its interpretation—given the lack of meaningful standards for the Court to evaluate its decision—also risked unconstitutionally stripping the Court of its power to decide what the law means: Should EPA wield its vast powers over electric utilities to protect public health? A pristine environment? Economic security? We are told that the breadth of the word “appropriate” authorizes EPA to decide for itself how to answer that question. . . . Although we hold today that EPA exceeded even the extremely permissive limits on agency power set by our precedents, we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here. . . . As in other areas of our jurisprudence concerning administrative agencies . . . we seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop to consider that document before blithely giving the force of law to any other agency “interpretations” of federal statutes. Zivotofsky v. Kerry concerned a 2002 federal statute requiring the State Department to record on passports and “consular reports of birth abroad” that an American citizen born in Jerusalem was born in “Israel” despite the longstanding presidential policy of ambiguity on whether Israel owns Jerusalem. The Bush and Obama administrations, each for its own reasons, protested this as a congressional invasion of the president’s foreign policy power to recognize foreign sovereigns and their borders, and a majority of the Court agreed. Scalia, Roberts, and Alito dissented, taking issue with the Court’s view of presidential powers and its view of statements on passports as the equivalent of recognizing a foreign government. The Court and the dissents glossed over the consular reports of birth abroad on the procedural grounds that Zivotofsky had argued the two documents should be treated the same. Only Thomas thought the two documents should be treated differently because Congress had power over one but not the other: Congress’s enumerated power over naturalization laws gave it the power to dictate the contents of a consular report of birth abroad, which is primarily a document used to prove citizenship, whereas no enumerated power permitted Congress to dictate the contents of passports, which therefore must give way when they conflicted with the president’s power to recognize foreign governments. Take The Raisins. Leave The Trains. Often, Thomas argues that the Court is ignoring a fundamental issue that cuts to the core of a case. In Horne v. Department of Agriculture, Chief Justice Roberts’s majority opinion concluded that a raisin-marketing program that involved federal confiscation and resale of raisins amounted to a “taking” of the raisin handlers’ property without just compensation under the Fifth Amendment. Justice Sonia Sotomayor disagreed that the program amounted to a taking, while Justice Stephen Breyer agreed that it did but thought further proceedings were needed to see if the raisin handlers were justly compensated after considering how they benefited from the program as a whole. Justice Thomas wrote separately, citing his dissent in Kelo v. New London, to argue that because the program “takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments,” the government may not have been able to justify taking the raisins on the grounds that they were “for public use” at all. As he wryly added, this would make the question of just compensation “a fruitless exercise.” In Department of Transportation v. Association of American Railroads, the Court unanimously ruled that Amtrak was acting as part of the federal government and not a private corporation when a 2008 federal statute empowered it to join with the Federal Railroad Administration in issuing “standards and metrics” to judge other passenger rail lines. The Court thus rejected a claim that the Constitution was violated by having a private company make federal law. Thomas wrote separately about the deeper constitutional issues, concluding that Amtrak—indeed, any federal agency—could not, consistent with the separation of powers, receive by delegation Congress’s power to “formulate generally applicable rules of private conduct.” Thomas’s opinion carefully traced the historical roots of the separation of powers all the way back to ancient Greece and Rome; by contrast, he pointedly noted of Kennedy’s opinion for the majority, “We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom.” And he offered a blunt assessment of the competing visions at stake: We should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power. I accept that this would inhibit the Government from acting with the speed and efficiency Congress has sometimes found desirable. . . . We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects. Protecting the Role of the Courts Justice Thomas’s opinions this term reflect his preoccupation with the administrative state’s tendency to transfer an ever-growing share of authority from Congress’s power to make the rules, the courts’ power and duty to say what the rules mean, and the president’s power and duty to enforce them. And that sometimes puts him in the seemingly surprising position of defending the courts. In Perez v. Mortgage Bankers Association, the Court ruled that the Administrative Procedures Act does not require agencies to give the public notice and an opportunity to comment before an agency changes its interpretation of one of its rules. Thomas, Scalia, and Alito all wrote separately to urge the Court to reconsider why agency interpretations should be entitled to any deference by the courts in interpreting agency rules. Thomas again delved deeply into the Founding-era documents and contrasted the Framers’ view of judicial review with the tendency of courts to defer to agencies’ interpretation: This accumulation of governmental powers allows agencies to change the meaning of regulations at their discretion and without any advance notice to the parties. . . . To regulated parties, the new interpretation might as well be a new regulation. . . . Today . . . formal rulemaking is the Yeti of administrative law. There are isolated sightings of it in the ratemaking context, but elsewhere it proves elusive. Thomas lambasted the Court’s frequent invocation of administrative agency expertise, which he traced to Woodrow Wilson and the progressive era’s “move from the individualism that had long characterized American society to the concept of a society organized for collective action” that “reflected a deep disdain for the theory of popular sovereignty.” Thomas quoted Wilson on democracy: In President Wilson’s view, public criticism would be beneficial in the formation of overall policy, but “a clumsy nuisance” in the daily life of Government—“a rustic handling delicate machinery.” . . . Reflecting this belief that bureaucrats might more effectively govern the country than the American people, the progressives ushered in significant expansions of the administrative state. In B&B Hardware, Inc. v. Hargis Industries, Inc., the Court held in a 7-2 opinion by Alito that decisions of the Trademark Trial and Appeal Board—an administrative tribunal—are binding in subsequent court cases. Thomas, joined by Scalia, dissented on the grounds that Congress should not be presumed to delegate such traditional powers of the courts to an agency without a clear statement that it was doing so. A similar concern animated his separate dissent in Wellness International Network, Ltd. v. Sharif. While Roberts split with Sotomayor’s opinion on whether private parties could agree to have a non-life-tenured bankruptcy judge decide cases that were supposed to be decided by a federal trial judge, Thomas wrote separately to explain why cases involving core private rights to life, liberty, or property are required to be handled by an independent judiciary in the first place. Thomas often stands up for clear lines of separation of powers and consistent application of individual rights even when the outcomes may not be “conservative.” He continued his critique of the Court’s cases striking down state laws that conflict with federal rules in Oneok, Inc. v. Learjet, Inc., and of the Court’s cases striking down state laws that regulate interstate commerce in Comptroller of the Treasury of Maryland v. Wynne. Both doctrines are often favored by federally regulated businesses to avoid state taxes and state tort suits. In Ohio v. Clark, he refused to join an opinion for the Court by Alito on the Sixth Amendment’s confrontation clause, arguing that the test for using out-of-court statements in criminal trials should be the same whether the statement was made to the government or to a private individual and shouldn’t depend on the “purpose” behind the questions that led to the statement. And in Elonis v. United States, he broke from Roberts’s majority opinion on threats made on a Facebook page, arguing that speech that falls outside the First Amendment’s protection—whether because it is threatening or for some other reason, such as obscenity—should not depend on the intention of the speaker but only the objective content of the speech. Unequal Justice Thomas’s critiques of administrative overreach and institutional bias came together most directly this term in his (again, lone) dissent in the Court’s 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. There, the Court ruled that the Fair Housing Act of 1968 allows “disparate impact” lawsuits for housing discrimination that don’t require proof of any intentional discrimination, just evidence that different groups had different results from the same practice. Kennedy’s opinion imported this rule to the FHA from the Court’s 1971 decision in Griggs v. Duke Power Co., which had ruled that Title VII of the Civil Rights Act of 1964 banned employers from using intelligence tests and requiring a high school diploma if that would have a larger impact on black job applicants. Like Title VII and other federal antidiscrimination laws, the FHA bans only discrimination “because of” race and other prohibited factors—language a normal person would understand to imply intentional discrimination. Thomas wanted the Court to overrule Griggs or at least stop repeating its error. And his criticism of disparate-impact law extends to areas more traditionally favored by the Court’s conservatives: In EEOC v. Abercrombie & Fitch Stores, Inc., he criticized Scalia’s majority opinion for imposing what amounted to a disparate-impact test for religious discrimination in a case involving a Muslim woman denied employment because her headscarf violated Abercrombie & Fitch’s dress code. In his FHA dissent, Thomas—himself the head of the EEOC in the 1980s—traced how the agency’s own records showed that the Griggs decision had emerged from a deliberate EEOC campaign to subvert the law Congress had passed and charged the commission with enforcing and to replace it by means of “creative interpretation” with something much broader: EEOC’s strategy paid off. The Court embraced EEOC’s theory of disparate impact, concluding that the agency’s position was “entitled to great deference.” . . . With only a brief nod to the text of [the relevant part of Title VII] in a footnote . . . the Court tied this novel theory of discrimination to “the statute’s perceived purpose” and EEOC’s view of the best way of effectuating it. . . . But statutory provisions—not purposes—go through the process of bicameralism and presentment mandated by our Constitution. We should not replace the former with the latter, . . . nor should we transfer our responsibility for interpreting those provisions to administrative agencies, let alone ones lacking substantive rulemaking authority. In an unusual footnote, Thomas also accused the Justice Department of manipulating the Court’s docket to prevent it from hearing the FHA case, noting a congressional report finding that after the Court agreed to hear the same issue four years earlier, then-Assistant Attorney General Thomas E. Perez—now Secretary of Labor—entered into a secret deal with the petitioners in that case, various officials of St. Paul, Minnesota, to prevent this Court from answering the question. Perez allegedly promised the officials that the Department of Justice would not intervene in two qui tam complaints then pending against St. Paul in exchange for the city’s dismissal of the case. The FHA case is one of a number of examples this term of Thomas’s distaste for racial paternalism and the particular obligation he seems to feel—as the Court’s lone African-American justice—to point out the consequences of this type of bias. Drawing on the work of Thomas Sowell, he noted the many ways racial disparities have arisen in societies across the globe, even disparities favoring minority groups, and rejected the implicit assumption “that a given racial disparity at an institution is a product of that institution rather than a reflection of disparities that exist outside of it.” And once again, he pointed his finger at the Court itself: It takes considerable audacity for today’s majority to describe the origins of racial imbalances in housing . . . without acknowledging this Court’s role in the development of this phenomenon. In the past, we have admitted that the sweeping desegregation remedies of the federal courts contributed to “white flight” from our Nation’s cities . . . in turn causing the racial imbalances that make it difficult to avoid disparate impact from housing development decisions. Today’s majority, however, apparently is as content to rewrite history as it is to rewrite statutes. Similarly, his dissent in the 5-4 decision in Alabama Legislative Black Caucus v. Alabama blasted the Court and the Department of Justice for creating more problems than they solved in enforcing the Voting Rights Act of 1965 to require “majority-minority” legislative districts—as he called it in a prior case, “segregating the races into political homelands”: I do not pretend that Alabama is blameless when it comes to its sordid history of racial politics. But, today the State is not the one that is culpable. Its redistricting effort was indeed tainted, but it was tainted by our voting rights jurisprudence and the uses to which the Voting Rights Act has been put. Long ago, the DOJ and special-interest groups like the ACLU hijacked the Act, and they have been using it ever since to achieve their vision of maximized black electoral strength, often at the expense of the voters they purport to help. If race is the text of these opinions, it is surely the subtext of Thomas’s dissent in Brumfield v. Cain, one of two death penalty decisions handed down the same day (the other being Davis v. Ayala) in which he wrote separately to contrast the Court’s solicitude towards murderers with its relative indifference to their victims. To underline his point, Thomas insisted on concluding his opinion in Brumfield by inserting, for permanent inclusion in the United States Reports, a photograph of the victim, off-duty Baton Rouge police officer Betty Smothers. The Court in Brumfield put off, yet again, the execution of Kevan Brumfield, who murdered Smothers in 1993, in order to let another federal court review evidence that Brumfield’s learning disability, fourth-grade reading level, IQ of 75, low birth weight, and long history of behavioral problems and crime sprees showed that he was too “intellectually limited” to be executed despite criminal activity that—as Sotomayor’s opinion conceded—“required a degree of advanced planning.” Before launching into his legal analysis, Thomas offered an extended contrast between two black men from disadvantaged backgrounds: Brumfield and Warrick Dunn, the now-retired NFL running back who was orphaned at 18 along with his five younger siblings when Brumfield murdered his mother. Dunn wrote about the impact on his family life and his subsequent charitable works in his autobiography, from which Thomas quoted. There’s an unsubtle critique of the glacial pace of death-row appeals in the fact that the teenage Dunn had time to grow up, become a college and pro-football star, retire seven years ago, and write a book while Brumfield’s as-yet-unfinished legal odyssey was winding its way through the justice system: [Brumfield] has spent the last 20 years claiming that his actions were the product of circumstances beyond his control. . . . Brumfield’s argument that his actions were the product of his disadvantaged background is striking in light of the conduct of Corporal Smothers’ children following her murder. . . . Like Brumfield, Warrick’s father was not a part of his life. But, unlike Brumfield, Warrick did not use the absence of a father figure as a justification for murder. Instead, he recognized that his mother had been “the family patriarch” when she was alive, and that he had a responsibility to take on that role after her death. Thomas’s history as a son of Jim Crow-era Georgia may also explain his joining the majority (breaking with the Court’s other conservatives) in Walker v. Sons of Confederate Veterans, Inc., in which the Court held that Texas could properly refuse to sell Confederate flag vanity license plates. Thomas has a history of weighing in on one particular symbol, the burning cross in the hands of the Ku Klux Klan; he spoke up uncharacteristically at oral argument during 1995 and 2003 cases involving the Klan and the cross and wrote separately in both cases to emphasize the particular meaning of that symbol as a political statement of racist terror. Then again, the Confederate flag’s history is more fraught; Thomas himself was criticized at his confirmation hearings for having the flag of his home state of Georgia, which then incorporated the Confederate flag, in his office. And the Walker majority’s view of when the state government has the power to control its own message when issuing license plates is consistent with Thomas’s view in Zivotofsky of when the State Department has the power to control its own message when issuing passports. Thomas’s willingness to draw a clear line between the government’s power to send messages and the individual’s right to tune out those messages taps into the deeper philosophical currents that animated his most controversial opinion of the term, his dissent in the same-sex marriage case of Obergefell v. Hodges. Dignity and the Right to Be Free Kennedy’s 5-4 opinion for the Court in Obergefell rested heavily on the doctrine of “substantive due process,” whose lineage goes back to the Court’s most infamous decision (Dred Scott v. Sandford, which Thomas is apt to cite as a cautionary tale) and which has returned, Zelig-like, in many of its worst misadventures since, particularly Roe v. Wade. The Fifth and Fourteenth Amendments forbid the federal and state governments, respectively, to “deprive any person of life, liberty, or property, without due process of law.” Somehow, in defiance of the language of this text, the Court has repeatedly ruled that it also prohibits the government from infringing certain forms of “fundamental” liberty with or without due process. Naturally, the Court’s opinion in Obergefell spent not a word analyzing the language or history of the due process clause before proceeding to wield it as a hammer. Each of the four dissenters—Roberts, Scalia, Thomas, and Alito—wrote his own opinion. Thomas focused on two related points. First, he traced the history of the due process clause in the Fifth Amendment to its roots in the Magna Carta and the political philosophy of John Locke to show that whatever “liberty” the due process clause protects from invasion in the first place, it is not the Court’s asserted right to have the government use a marriage license to endorse the “dignity” of relationships: Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. . . . As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” . . . Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. . . . The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government. Second, in the portion of his opinion that drew the most controversy, Thomas delved deeper, observing the hollowness of the majority’s definition of dignity as a thing conferred by government: Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built. The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away. Besides the deep roots of this view of human dignity in both Christian theology and the Enlightenment political philosophy embodied in the Declaration—the “natural law” sources that were a subject of contention at Thomas’s confirmation hearings 24 years ago—the critics of this passage missed another aspect of particular importance to Thomas: its roots in African-American thinking about humanity in the face of oppression, from Frederick Douglass to Booker T. Washington to Marcus Garvey to Malcolm X to Martin Luther King Jr.’s “street sweeper” speech. As Douglass observed, “They cannot degrade Frederick Douglass. The soul that is within me no man can degrade. I am not the one that is being degraded on account of this treatment, but those who are inflicting it upon me.” Trust Laws, not Men Clarence Thomas is an affable man, if one who does not forget his scars, and by all accounts he gets on well enough with his colleagues. But given that few of them other than Scalia bother responding to his lone opinions, one wonders if some of them look at him a little funny—“that guy who keeps going on about the Constitution.” He is known to prefer the company of almost anyone to the company of his fellow judges and lawyers; he meets more often than any other justice with groups of visitors to the Court and travels the country in his RV during the Court’s recesses. But that distance makes him uniquely suited among the justices to look at this country not from the perspective of a member of the judicial high priesthood, but as a citizen ruled by it. Some critics suggest that he may be biased by the fact that his wife is active in Tea Party groups, but after his nearly quarter of a century on the Court, suggesting that Thomas’s view of the Constitution is influenced by the Tea Party is rather like suggesting that Newton’s physics were influenced by Einstein. Thomas’s opinions this term form a coherent whole, one that places no trust in institutions—in the wisdom of judges, the expertise of bureaucrats, or the evenhandedness of either—but depends instead on clear, written rules and structural checks and balances. And his philosophy, while grounded in the same principles as our Constitution itself, should not surprise us. Thomas is not so far removed from his upbringing in segregated Georgia that he cannot remember what it was like to live in a place and time in which the government was staffed and run by people who had no intention of treating you fairly. Two strategies are available to a citizen confronted by such a government. One is to keep for himself as large a space as possible free of the government, in which to exercise true liberty. The other is to insist on the punctilious observance of the letter of the law. The whims of administrative agencies and the discretion of judges to fashion new rights and rules according to their own policy preferences threaten both of these strategies, to the detriment of whomever the people in power regard as beneath their concern. It is perhaps a supreme irony, but a fitting one, that the man most concerned with keeping alight the flame of these old concepts of liberty and dignity is the justice of the Supreme Court who grew up under a government that wished to accord him neither liberty nor dignity. Dan McLaughlin is a lawyer in New York City. Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 5.
#1. To: TooConservative (#0)
Good article and a counter to the claim Thomas does not ask questions during hearings. I don't even like the idea justices can ask questions. They should hear the case only and decide after. I also don't like the supreme court as it stands. I think a better system would be that all federal judges get rotated into the court for one year terms or something like that and that there would be 13 of them not 9. Every year, 13 new federal judges for one year terms. No nomination or approval process.
Which might make "strike now while I can" a real motive for Court justices. At present, they can always say, "Well, I don't have to social engineer right now". Arguments for term limits always come up against this. You can actually make a system far more corrupt by limiting the term during which they can exercise this vast power. A far better solution would be for Congress to start passing laws that specifically forbid review by the Court. The Constitution allows for this but they never do it. DOMA would have prevailed if it had had a no-Court-review clause in it. Then if the Court tried to pull a Marbury to re-assert its supremacy, either Congress or the WH would defy them and the Court would be delegitimized with the public, a horror every Chief Justice dreads.
A 2/3rd majority vote by the congress to overrule the SC and leaving the old ruling under review in force. The congress is elected every 2 years. They speak for the people.
Probably the Senate only, the House is too volatile. And I'd put the number at 55 or 60 to override the Court. 66 votes is too high.
Probably the Senate only, the House is too volatile. And I'd put the number at 55 or 60 to override the Court. 66 votes is too high I don't want to rig the system - I want it linked to the people - volatile or not. Gay marriage should be decided by the people's representatives in my hypothetical scenario. If the SC allows homo marriage (a more accurate name since homo means the same rather than gay which means happy) then the people via their directly elected representatives should be able to weigh in on it. I used 2/3s because I do actually want to make it an effort - not something easily done. You need 1/3rd of the congress to approve it being put up for a vote and then 2/3rds to override the SC decision. Also, on the senate - I would go back to having one senator elected directly by a state and the other senator appointed by the state's legislature. I like that kind of compromise of the old system with the new.
#6. To: Pericles (#5)
It's always too easy for modern partisan hack presidents to get enough members of their own party to support them that veto overrides become a rarity. Look at Xlinton/Bush/Obama. Very very few vetoes or overrides. So few that it is a power almost unused to check a runaway executive.
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