Yet the same liberal acknowledged 2 yrs ago that Thomas was an intellectual leader on the Court. But racist liberals still love to hoot about him being just a dumb n*****.
http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin
.... Thomas’s views are now being followed by a majority of the Court in case after case.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
In his jurisprudence, Thomas may be best known for his belief in a “color-blind Constitution”; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control. In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.)
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This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.
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Thomas graduated from Yale Law School in 1974, and he maintains a rich and public loathing for the institution. In his autobiography, published in 2007, he wrote, “As a symbol of my disillusionment, I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale. I never did change my mind about its value.” Thomas has refused entreaties from a series of deans at Yale to sit for a portrait for the school. (His law-school travels never take him to Yale or to comparable institutions. “I don’t do Ivies,” he told a law professor.)
The gist of Thomas’s complaint about Yale reflects his feelings about the worth of affirmative action generally. In his book, Thomas recounts his difficulties finding a job after Yale, which he attributed to “what a law degree from Yale was worth when it bore the taint of racial preference.” In light of this, he wrote, “Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.”
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“I grew up with maids, and janitors, and yard people,” he told the students at Stetson. “It gives you a perspective on society. You’re looking from the bottom up, and how people see it from that direction. . . . You understand why people are angry or upset. You understand why they become rich soil for class envy and class hatred, or class warfare. You see how they become easy pickings for people who have snake-oil merchants for solving all their problems. But you develop a respect for them without condescension. You develop an attitude that we are all inherently equal regardless of who went to school and who did not—that there can be smart people who did not have any book learning and never had a chance.”
Thomas continued, “There’s a difference between being poor and being stupid. And you’re stupid for thinking that they’re stupid.
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In practical terms, Thomas pays far less deference to prior rulings of the Court than his colleagues do. As he put it at Stetson, “If it’s wrong, it’s wrong, and we are obligated to revisit it.” This is a different approach from the traditional conservative position, which stresses the importance of stare decisis—of relying on precedent. As Roberts put it in his confirmation hearings, “Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.” (Whether Roberts, as Chief Justice, has actually honored that sentiment is a different question.) Thomas, though, makes little pretense of relying on the words of his colleagues and their predecessors when their interpretations conflict with his own understanding of the text of the Constitution itself.
From the moment Thomas arrived on the Court, he has been a committed originalist; he believes the Constitution should be interpreted as the words were understood by the men who wrote it. “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning,” Thomas wrote in an opinion from 2005. Scalia is the figure most often associated with this school of thought, but he refers to himself as a “fainthearted originalist.” Scalia means that other factors besides his own understanding of the intent of the framers, most especially the long-established precedents of the Court, influence his judgment on the resolution of constitutional disputes. “If a constitutional line of authority is wrong, he”—Thomas—“would say let’s get it right,” Scalia told a reporter in 2004. “I wouldn’t do that. He does not believe in stare decisis period.” In other words, there is nothing fainthearted about Thomas’s convictions about the meaning of the Constitution.
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“When interpreting a constitutional provision,” Thomas wrote earlier this year, “the goal is to discern the most likely public understanding of that provision at the time it was adopted.” To that end, he plumbs the words of the framers and the eighteenth-century (and earlier) thinkers who influenced Jefferson, Madison, and their contemporaries. No other Justice, not even Scalia, studies the historical record with as much care, and enthusiasm, as Thomas.
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In legal academia, Thomas’s rigor has won respect across the political spectrum. According to Sanford Levinson, a left-leaning professor at the University of Texas School of Law, “Scalia is far more influential, because he has spent much of the last two decades campaigning around the nation for his views, but it would not surprise me if future historians find Thomas to be the more intellectually serious of the two.”
In 1993, during the early days of the Clinton Administration, Congress passed the gun-control law known as the Brady bill. The complex piece of legislation included an interim provision that directed state and local officials to conduct background checks for prospective handgun purchasers. That portion of the bill was challenged, and in 1997, by a vote of five-to-four, the Supreme Court found the temporary part of the law unconstitutional. Scalia’s opinion for the Court in Printz v. United States concluded that the law amounted to an impermissible federal intrusion on states’ rights.
Thomas joined Scalia’s opinion for the majority but wrote a concurring opinion that examined the case in a different way. Thomas devoted his opinion to the Second Amendment, which provides that a “well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Second Amendment had not been addressed by the Supreme Court since 1939, and the parties in Printz had not raised a Second Amendment claim at any stage of the proceedings, but Thomas used the case to undertake an extensive discussion of it. Indeed, Thomas suggested that the Brady bill might well be unconstitutional as a violation of the Second Amendment. “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right,” Thomas wrote.
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.. again cited Thomas’s opinion in calling for a new understanding of the Second Amendment.
Thomas’s opinion also drew the attention of Clark Neily III and Steve Simpson, two libertarian lawyers who wanted to bring a test case to the Supreme Court.
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Levy’s group found Dick Heller, a security guard living in Washington, D.C., who had been prevented, by the District’s tough gun-control law, from having a handgun for self-protection. Heller became the plaintiff in the test case, and in 2008 the Supreme Court ruled in his favor, holding that the Second Amendment does confer on individuals the right to bear arms. Scalia wrote the opinion for the five-to-four majority in District of Columbia v. Heller, but his sentiments closely reflected those which Thomas had put forward eleven years earlier.
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In any event, there is no sign that Thomas plans to recuse himself on health care or on any other case related to his wife’s political activities.
Still, the controversy over Ginni’s work has already taken a toll on Justice Thomas, as he made clear in an emotional appearance at a Federalist Society event at the University of Virginia School of Law, in February. “This is about our country, and one of the things I want to do is I want to go to my grave knowing that I gave everything I have to trying to get it right. And all I ask of you all, especially those of you who are still in school, is you give it your best,” Thomas said, in remarks first reported by Politico. “I watch my bride who, in doing the same things, when she started her organization, she gives it 24/7 every day, in defense of liberty. You know, and maybe that’s why we’re equally young and we love being with each other because we love the same things; we believe in the same things. So, with my wife and the people around me what I see unreinforced is that we are focused on defending liberty. So, I admire her and I love her for that because it keeps me going.” Then, concluding his speech, he said, “My bride is with me, Virginia Thomas, and some of you may know her. But the reason that I specifically bring it up: there is a price to pay today for standing in defense of your Constitution.”
At the appearance at Stetson, Thomas was asked about the most controversial decision so far from the Roberts Court, Citizens United v. Federal Election Commission, in 2010. In that case, Thomas joined Anthony M. Kennedy’s five-Justice majority opinion, which held that a major part of the McCain-Feingold campaign-finance law was unconstitutional. The case said that corporations enjoyed the right to free speech and that any attempt to limit corporate spending on behalf of political candidates amounted to a violation of the First Amendment.
Thomas’s defense of the decision was unconventional but was consistent with his long-standing approach to free-speech issues. He told the students that federal regulation of corporate involvement with politics began with the Tillman Act, which in 1907 banned direct corporate contributions to candidates. “Go back and read why Tillman introduced that legislation,” Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
This is a characteristic intellectual gesture by Thomas—to assert that government poisons whatever it touches. More to the point, he argues that government attempts to assist black people, even to integrate white institutions, invariably backfire against their purported beneficiaries.
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“In light of the Framers’ universal practice of publishing anonymous articles and pamphlets,” Thomas wrote, it was clear “that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech.” This case marked the début of Thomas’s absolutist position on free-speech issues. “I don’t agree with him, but Thomas has the most internally coherent view of any Justice,” Richard Hasen, a professor at the School of Law at the University of California at Irvine and the proprietor of a widely read blog on electoral law, said. “His view is that the First Amendment allows virtually no regulation of campaign advertising, campaign contributions, or expenditures. The Court has been moving his way.”
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By 2010, in Citizens United, it had become clear that Thomas was routing Breyer. Though Thomas was not the author of the Court’s opinion in that famous case, Kennedy did adopt several Thomas tropes—that there was no difference, under the First Amendment, between an individual and a corporation, and limitations on expenditures amounted to limitations on speech. But still, remarkably, Thomas wanted more. Kennedy’s opinion did uphold federal rules that required corporations and others to disclose how much they had contributed to political campaigns. To Thomas, even this amounted to an unlawful intrusion on the First Amendment. Returning to a theme first expressed in McIntyre, fifteen years earlier, Thomas said, in a separate opinion, in Citizens United, that the First Amendment protected anonymity as much as speech itself. Ever alert to contemporary political developments as much as to eighteenth-century history, Thomas asserted that harassment of contributors to Proposition 8 in California, which banned same-sex marriage, demonstrated the dangers of mandatory disclosures. “These instances of retaliation sufficiently demonstrate why this Court should invalidate mandatory disclosure and reporting requirements,” he wrote. On this issue, Thomas has not persuaded a majority of his colleagues—yet.
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http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin?currentPage=1 |
