Another Liberal Writer Realizes Clarence Thomas Is Actually a Principled Legal Conservative

In his majority opinion this week in the case of Alleyne v. United States, Justice Clarence Thomas, joined by the Supreme Court’s four liberal justices, strengthened the Sixth Amendment right to a trial by jury for a criminal defendant facing a federal mandatory minimum sentence. At Slate, the liberal writer Mark Joseph Stern surveys this opinion and several others by the conservative justice and declares, “Thomas is much more than a Tea Party mouthpiece.”

It’s yet another example of a left-of-center writer acknowledging that while Justice Thomas may be a legal conservative, at least he’s a principled one, and, moreover, sometimes that means he votes in favor of “liberal” outcomes.

So far so good. But I’m afraid Stern lets his animosity towards Thomas’ legal conservatism get the better of him in this regrettable passage:

More than any justice in history, Thomas is an originalist, ruling exclusively by the letter of what he views as the Founders’ original intent in writing the Constitution. Because the Founders, for example, condoned “public dissection” and the “embowelling [sic] alive, beheading, and quartering” of prisoners, so too does Thomas.

Neither the Founders nor Thomas “condoned” anything of the sort. In fact, in the opinion to which Stern refers, Baze v. Rees (2008), Thomas argues that the original understanding of the Eighth Amendment prevents punishments “designed to inflict torture as a way of enhancing a death sentence.” As an example of such intentionally tortuous capital punishments, Thomas points to the very methods quoted by Stern. In other words, Stern’s example proves the opposite of the point he was trying to make.

This unfortunate error aside, it’s a mostly fair piece by a liberal writer trying to grapple with Thomas’ views.

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  • Stormy Dragon||

    So what principle was Thomas conserving in Salinas v. Texas?

  • SugarFree||

    Or The Not-So-Strange Case of the 11-Year-Old's Advil Panties?

  • John||

    That courts can't second guess schools.

  • Brett L||

    See below. It is accpeted as fact that the liberties of minors can be curtailed. It is accepted that a legal guardian decides when and how to exercise enumerated rights for a minor. He views the local school, in immediate absence of a parent as that guardian. I disagree with him, but he is extremely consistent on this. I think pretending that you can't fathom how he could come to this conclusion is weird. He's no true libertarian, but he's consistent and has thought about the issue. He came to a different conclusion, but it is his and it is logical (but wrong!)

  • Stormy Dragon||

    He views the local school, in immediate absence of a parent as that guardian

    And where is that in the constitution?

  • Brett L||

    The same place where it lays out parental responsibilities to minors.

  • ||

    +1 Captain Obviouses.

  • Emmerson Biggins||

    Are you against public schools, and compulsory attendance laws? I am. But once you admit that the state has the right to forcibly "educate" children, I don't think it's a big weird leap of logic to assume that the state is acting in loco parentis during said "education".

  • Bo Cara Esq.||

    I think that cuts the other way, against you, as Alito noted in his opinion in the Bong Hits for Jesus case.

    If you are compelled to send your kid to the government school the whole idea that you've given your parental authority over to said school blows up.

  • ||

    Was that the case that granted first graders their 1A right to say, "Fuck off, cunt," to their teachers?

  • Sam Grove||

    And where is that in the constitution?

    Right after the granting of the franchise to people of ANY age, but before the establishment of government schools.

  • Kreel Sarloo||

    In some of what I have read of Thomas' opinions he sometimes seems to saying something like "not every bad thing the government does is unconstitutional, maybe it ought to be but for now it's not. I can only give my opinion on whether a thing is constitutional, not on whether it's right."

  • Bo Cara Esq.||

    He said this in Lawrence quoting one of the more witty statements of this idea in American law:

    " I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

    Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated."

  • Stormy Dragon||

    Except he very clearly is so empowered, so I'm not sure how he can make that assertion, particularly as though it's self-evidently obvious.

  • Kreel Sarloo||

    I'm sorry I don't see where he is so clearly empowered.

    The COTUS gives the states wide latitude in imposing police powers. We might no like it but they are there.

    On the other hand the federal government has much less latitude in imposing police powers. But they have not shrunk from exceeding those bounds. Thomas is usually on the right side of those arguments.

  • Juice||

    noncommercial

  • ||

    Maybe, just maybe, Thomas doesn't make decisions based on the results he wants. Maybe, just maybe, he as a consistent train of logic that leads him down a path based on his fundamental Constitutional principles.

    You might not agree with his logic chain, but it's simply silly to attack based on results and not the actual argument.

  • Stormy Dragon||

    Maybe, just maybe, Thomas doesn't make decisions based on the results he wants.

    How did you arrive at that conclusion?

  • ||

    Why does my opinion matter? It's your question. How did you arrive at your conclusion that his opinion in Salinas v. Texas is somehow inconsistent with the way he generally reaches his conclusions?

    Or are you just throw bombs for the fuck of it?

  • RBS||

    Or are you just throw bombs for the fuck of it?

    I see you've met Stormy.

  • Emmerson Biggins||

    Clarence Thomas does really seem to put him into high-Derp mode though.

  • Stormy Dragon||

    Actually, Thomas is my favorite justice, albeit in the tallest midget sense. I just think that his whole "I don't just do what I want, I just apply originalist principles" thing is a load of BS.

    It's based on the ridiculous premise that a body composed of large numbers of people can be compressed to a single consistent intent. The government is, of course, wildly inconsistent and you can thus construct an Originalist arguments for both upholding and overturning many laws.

    Thomas's particular favorite ruse is his wildly varying opinion of how important "deference to the political branches" is from one case to the next.

  • SugarFree||

    If his train of logic is always arriving a Expand Police Powers Station, maybe he needs to switch to another line.

  • Brett L||

    I think it is perfectly fine to cricize him as a statist. I won't argue with you. Its the people who say, "I don't understand how he could be so good on issue A and so bad on issue B." when he has cleary decided along the same lines on issues similar to A and B in his 20 years on the bench that confuse me. If a minor is in conflict with the state, Thomas is taking the state's side.

  • Bo Cara Esq.||

    His opinion in Hamdi was terrifying.

  • Libertymike||

    How about the recent King v Maryland case?

    COGNITIVE DISSONANCE.

  • sam the man||

    I haven't read his opinion on it so I can't comment specifically but if even Scalia came out against it then that's kind of disappointing Thomas didn't.

  • The Late P Brooks||

    “Thomas is much more than a Tea Party mouthpiece.”

    Deviation from the narrative will be sternly dealt with.

  • ||

    At least he didn't say: Thomas for once removed Scalia's hand from up his ass to vote like a liberal.

    Which is how ignorant left-wingers have always viewed him, despite a mountain of written opinions to the contrary.

  • John||

    That is what Stern wanted to write. But he decided his trolling would be more effective by toning down his rhetoric. His misstatement about the 8th Amendment was the point of the article.

    The article can be boiled down to "Thomas isn't the dumb N***** I thought he was, but he is still totally evil and thinks torture is okay".

    You really can't hold these people in too much contempt.

  • Bo Cara Esq.||

    Were'nt you the one talking about dog whistles and those who hear them the other day?

  • John||

    It is not a whistle if it is obvious. Stern wrote what he wrote.

  • Bo Cara Esq.||

    Stern wrote "Thomas isn't the dumb N***** I thought he was, but he is still totally evil and thinks torture is okay".

    You're totally doing what you were complaining of the other day, reading racism into the article via implication.

  • John||

    No I am not. Liberals have a long history of racial hatred towards Thomas. They have called him stupid, said he was unqualified. Stern when he completely misrepresents Thomas' views on the 8th Amendment continues in that tradition.

    Read in that context, even his praise for Thomas becomes nothing but back handed compliments and condescension. Is it really necessary to write an entire article explaining that a Supreme Court Justice actually considers his decisions and is not just a mouth piece for a political movement? Of course not. And Stern would never write such an article about a white conservative justice. He only writes one about Thomas because Stern, like nearly every other white liberal in America, is a racist who is surprised by the idea that a black man could form his own opinions at odds with those opinions good thinking white people provide for him.

  • Irish||

    No I am not. Liberals have a long history of racial hatred towards Thomas.

    Do you have any quotes of Stern specifically doing this? Scumbag progs often do, but I don't think you should tar Stern as a racist just because other people with similar political beliefs have said racist things.

    I don't think Stern is racist by association.

  • Bo Cara Esq.||

    Your using 'context' and inference to label this guy a racist. It's like you're channeling Al Sharpton.

  • Irish||

    He's also claiming Stern is racist because Stern wrote about Thomas and other, unrelated liberals have said racist things about Thomas.

    So Stern is a racist because liberals who aren't Stern have called him an Uncle Tom. It's the exact same argument dumbass leftists use when they try to claim Republicans are racists because some random ass Republican in Illinois that no one has ever heard of sent out an insensitive email.

  • Bo Cara Esq.||

    "It's the exact same argument dumbass leftists use when they try to claim Republicans are racists because some random ass Republican in Illinois that no one has ever heard of sent out an insensitive email."

    Agreed. And this "Why are you so threatened by a powerful, smart black man?" is exactly what I heard Obama defenders saying about Obama critics.

  • Emmerson Biggins||

    I think Bo Cara has a point here. This guy doesn't hate Thomas because he is black. He hates him because he isn't a progtard. At least,IMO, that is the basis on which we should argue (absent further evidence) if we wish to receive the benefit of the doubt in reciprocal situations.

  • Pro Libertate||

    Thomas is a better and more influential jurist than Scalia. It's flat-out racism to say otherwise.

  • ||

    "In other words, Stern’s example proves the opposite of the point he was trying to make."

    Uh...why would you assume Joseph is in error?

  • John||

    Liberals shocked that a black man could actually think for himself and come to his own conclusions. People like Stern are just disgusting racists. What a horrible, condescending article that is. Stern really has a problem with black people forming their own opinions.

    What is the matter Mark? Why are you so threatened by a powerful, smart black man?

  • Brett L||

    This unfortunate error aside, it’s a mostly fair piece by a liberal writer trying to grapple with Thomas’ views.

    Other than that, Mrs. Lincoln, how was the play? Its a perfect example of "this is the best of the other side, and this is why they are still reprehensible" writing.

  • John||

    So other than the fact that Stern is either a complete moron who is incapable of understanding one of Thomas' opinion or if he can understand them is too dishonest to be trusted to report them, Stern is a great guy.

  • Libertymike||

    John, notwithstanding the Sterns of the world, there can be no question that Thomas, like so many others, does not have a coherent, comprehensive conception of originalism.

    Take the recent Maryland case concerning DNA testing. What part of originalism is compatible with the notion that the founding generation, particularly the more articulate firebrands for liberty and the anti-federalists, would have agreed with the proposition that whenever the king's men arrested an individual, the individual was obliged to open his mouth for royal inspection?

  • Brett L||

    I would argue that Thomas does have a consistent legal lens through which he views the world. It is labelled as "orginalist" by others. Nowhere in the document does it say that minors don't get their rights without direct and intentional guardian intervention, but you can know which way Thomas will vote on that. Most everyone agrees that minors can't exercise all rights, and that their liberties can be curtailed in a way that cannot be constitutionally applied to adults, Thomas is just much farther down that trail than most of us on this blog would prefer. But he's always the same distance down the trail. The piece by Stern is not an airing of disagreements about Thomas's views.

  • Bo Cara Esq.||

    Thomas is not just generally pro-law enforcement in cases with juveniles. I just finished Criminal Law and he sided with LE most of the time.

  • RBS||

    I just finished Criminal Law

    Awe.

  • Bo Cara Esq.||

    I'm not claiming it as some kind of authority, just that I couldn't help but notice that in case after case Thomas usually sided with LE. In fact it's instances like the one that prompted Stern's article that make it news: see, man does bite dog!

  • sam the man||

    His dissent in Gonzales v. Raich is another example of him not siding with LE.

  • John||

    Since when is the "King" the same as "the state of Maryland? The states at the time of the founders did lots of things. The Constitution was about the Feds not the states.

  • ||

    Once you add the 14th amendment and incorporation, it's all the same.

  • Libertymike||

    John, since when is the founding limited to the constitution?

    Thomas, himself, has several times opined that the Declaration of Independence is the charter and the founding document and that it forms part of what he calls The Higher Law.

    Furthermore, the blanket assertion that that constitution is just about the feds, is false, on its face.

  • Bo Cara Esq.||

    Indeed, even before the Reconstruction Amendments you have Article IV and the 10th Amendment.

  • John||

    Indeed, even before the Reconstruction Amendments you have Article IV and the 10th Amendment.

    But before the 14th Amendment, none of the Bill of Rights was ever applied to the states. And even afterwards, it was only applied in parts. Even today, no one argues that the entire BOR applies to the states. So all of Rob C's talk of the King is irrelevant.

  • sam the man||

    What do you mean "no one argues that the entire BOR applies to the states"? Wasn't that the whole point of the 14th?

  • John||

    John, since when is the founding limited to the constitution?

    It is not. You are not understanding the argument. If the states did things at the time after the initial passing of the Constitution, then the constitution was clearly not intended to prevent the states from doing those things.

    Thomas, himself, has several times opined that the Declaration of Independence is the charter and the founding document and that it forms part of what he calls The Higher Law.

    So what? To get to all that you have to conclude that the constitution was designed to apply to the states in exactly the same way it applies to the feds. And it clearly wasn't and doesn't. So, stop misapplying arguments about it.

  • Bo Cara Esq.||

    "If the states did things at the time after the initial passing of the Constitution, then the constitution was clearly not intended to prevent the states from doing those things."

    As has been pointed out, that all changed with the 14th Amendment and incorporation.

  • John||

    As has been pointed out, that all changed with the 14th Amendment and incorporation.

    No, some of that changed with the 14th Amendment. And that of course is the argument. And pointing to the actions of the founders as evidence of what rights were intended to be incorporated by the 14th Amendment is unpersuasive and irrelevant.

  • ||

    Wait, which part of the bill of rights isn't applied to the states?

  • Bo Cara Esq.||

    I think John is correct on this. The 7th Amendment hasn't been incorporated and the Grand Jury Clause of the 5th.

  • Bo Cara Esq.||

    "pointing to the actions of the founders as evidence of what rights were intended to be incorporated by the 14th Amendment is unpersuasive and irrelevant."

    Agreed, you should look to the practices of the people who ratified the 14th if anywhere.

    But you said "If the states did things at the time after the initial passing of the Constitution, then the constitution was clearly not intended to prevent the states from doing those things." And that can't be correct since the Constitution includes provisions, like the 14th, which came far after the "initial passing of the Constitution."

  • Libertymike||

    Stop falsely claiming that I am misapplying arguments.

    Higher law principles, i.e., natural rights, dictate that it matters not what the state governments say about opening your mouth for royal inspection; rather, it is the overarching principle of the supremacy of individual liberty and free enterprise over state power.

    There is nothing in the Declaration of Independence which authorizes one of the king's men or one of the state's men to force you to open your mouth for inspection upon arrest.

  • sarcasmic||

    Higher law principles, i.e., natural rights, dictate that it matters not what the state governments say about opening your mouth for royal inspection; rather, it is the overarching principle of the supremacy of individual liberty and free enterprise over state power.

    It is my understanding that the legal system does not recognize natural rights. I may be wrong, but that's the impression I get.

  • Libertymike||

    It doesn't, as a matter of fact, today and has not for quite some time.

    However, there is no debate about what the vast majority of the founding generation thought. Natural rights is what undergirds the Declaration of Independence as well as the 9th amendment.

  • sarcasmic||

    Heavy Metal Captain Stern & Hanover Fist

    Four minutes of hilarity. You're welcome.

  • ||

    Where's the twist ending?

  • Lyle||

    Tea Party mouthpiece? Yeah, it was the Tea Party that put Clarence Thomas on the Supreme Court. He was waving their flag too when he was being vetted by Congress.

  • John||

    In fairness, Stern probably has no idea that Thomas has been on the court since 1991. He is a journalist after all. And knowing something about his subject is a way to much to expect from someone in that profession.

  • Bo Cara Esq.||

    This.

    Journalists tend to write awfully about the law, just like many sportswriters who never played much sports write awfully about sports.

    And then there's the fact that Slate tends to write some of the most superficial stuff out there. It's always "conventional wisdom is this, but here it is not so!" and often, as in this case, the CW is more so than not.

  • Lyle||

    Yep.

    There's something about every single young journalist writing for a national publication that I abhor.

    I was reading Weigel just a couple of days ago and he got simple facts about Bobby Jindal and Elbert Guillory wrong.

    That guy could care less.

  • Skip||

    Lefties are the ultimate sore losers. They are STILL outraged that Thomas was put on the Court over 20 years ago! It would be like Republicans saying Breyer was unqualified.

  • sarcasmic||

    Sore losers? They never lose! They keep moving the goalposts until they win, then the game is over!

  • Bo Cara Esq.||

    Or that Sotomayer was?

  • Ken Shultz||

    In certain circles, "Tea Party" has become a generic term for everything wrong with the world.

    The "tea party", like evil, has always been with us...according to them, anyway.

    I saw a commercial for Fiats last night. Check this commercial out:

    http://www.youtube.com/watch?v=_PTSAaCwh5M

    In Los Angeles (and I assume other predominately lefty markets, as well), when the woman at the end says, "This is going to start a revolution". Instead of saying that, the woman says, "This is so much better than The Tea Party!"

    It's getting smeared in popular culture like you can't believe. It's become code for everything that's both conservative and butt ugly embarrassing.

    I'm not saying that's the way it should be; I'm saying that's the way it is. I suppose the only thing worse would be if they started calling people "libertarian" when they mean they're racist.

  • Bo Cara Esq.||

    I totally noticed that too, and I thought it was a snarky hit at the political Tea Party as well.

    Fiat is connected to bail out recipients Chrysler so I'm not surprised much.

  • Ken Shultz||

    I think they're just trying to sell those little Fiats to women in blue states.

    That's who they're trying to appeal to, and then they run the non-controversial ad in other places...

    I think they're just trying to do what sells. They may be perpetuating that view of the Tea Party, but mostly they're just trying to capitalize on it. The people who make these commercials are studying what sells to their target consumer, and "Tea Party" must be registering as really uncool right now.

    So, we'll call it something else. The pendulum will swing again.

    I hate hoping for bad things to happen, but some of Obama's most incompetent policies are coming home to roost. His handling of the Bernanke thing was stupid incompetent. The healthcare exchanges are failing. The pendulum will swing again.

  • Bo Cara Esq.||

    Those women in the commercial were awful hot though. I'm not sure you appeal to women buyers by putting such hot ladies in your ads.

  • Ken Shultz||

    Have you ever looked at Vogue or Cosmo? Full of beautiful women.

    Did you notice the one woman cutting her hair?

    They were selling those Fiats as being liberating for women.

  • Bo Cara Esq.||

    Good points, I think you're correct now...

  • tarran||

    Actually one does.

    IIRC in some psychological research looking at the question, they scientists observed that a majoriy of women prefer to look at beautiful women more than ugly ones, and more than handsome men.

    The jezzies who decry objectification are a minority, and don't have much money, so the advertisers don't mind pissing them off to attract the eyeballs of a much larger pool of women.

  • Brett L||

    The jezzies who publicily decry objectification are a minority

    FTFY. They never argue that those women are ugly and few argue that they get tired of looking at them. None can say honestly that they don't notice them.

  • Irish||

    Too bad the worst aspects of Obamacare weren't implemented before 2012. We could have been rid of the son of a bitch if people had seen this disaster occurring in summer 2012.

  • Ken Shultz||

    I don't think that was by accident.

    He didn't want to have to run for reelection with that monster he created destroying our healthcare system in the background.

  • Irish||

    I don't think he would have passed that if he thought it would be a monster that would destroy our health care system.

    He's too stupid to have realized the law was bad and pushed it back a few years to save himself during the reelection.

    He's just a very stupid man.

  • Ken Shultz||

    "I don't think he would have passed that if he thought it would be a monster that would destroy our health care system."

    I think he was naive going in.

    I think he also thought failing to pass anything would be detrimental to his reelection chances.

    Americans hate failures, and he put so much political capital into getting it passed, he had to pass it whether it was a monster or not.

  • Ken Shultz||

    Actually, I found the version I was talking about!

    http://www.youtube.com/watch?v=vYFrar83XVY

    She says, "This is going to be so much better than the Tea Party".

    In blue states, Tea Party = everything uncool.

  • Irish||

    I saw that, and can say that the Tea Party line was also in the one they ran in Chicago.

    They probably did it in all left-wing areas.

  • sam the man||

    Where in Chicago? The one I saw had the revolution line at the end.

  • Irish||

    Really? I'm right near the city in the west suburbs, so I'm one of those douchebags who says he's 'from Chicago' even though I'm technically from a suburb.

    My area is like +8 Democrat, so if they wanted to take a swipe at the tea party, it makes sense that they'd do it here.

    Are you from a more Republican district? Would they have run different commercials in different parts of Chicagoland? I don't even know if that's possible.

  • Ken Shultz||

    They won't be happy until every part of government is expressly devoted to the progressive agenda.

    You're either with them or you're against them.

  • ||

    Utilitarians and pragmatists have a really, really hard time understanding priciple, I've noticed. Liberals are always asking me stuff like "What about Issue X?" or "What about So-and-So Law?" I'm sure it's not just liberals, but that's who I'm exposed to the most in this shithole. If they understood principle, they would automatically know my stance on even the most arcane political details. It ain't no mystery.

  • ||

    If they did realize it, they'd just take that as proof that your views aren't nuanced.

  • Mike M.||

    Jesus Christ, these left-wingers today are such total deranged lunatics that they can't even take "yes" for an answer anymore. What the fuck ever happened to a simple "thank you"?

  • Enough About Palin||

  • Eduard van Haalen||

    Smack my Bishop

    (at least that's what I *think* they're saying)

    https://www.youtube.com/watch?v=xzxd9d41Hhc

  • Loki||

    Thomas argues that the original understanding of the Eighth Amendment prevents punishments “designed to inflict torture as a way of enhancing a death sentence.” As an example of such intentionally tortuous capital punishments, Thomas points to the very methods quoted by Stern. In other words, Stern’s example proves the opposite of the point he was trying to make.

    Let's not let facts get in the way of the narrative.

  • brec||

    ... intentionally tortuous capital punishments ...

    The word wanted is torturous.

    http://dictionary.reference.com/browse/torturous -- see Usage Note

  • Brett L||

    I think they've been long-winded at times.

  • lap83||

    "I don't know one of my friends who is considered a conservative who has not had to go back and thoroughly think through everything. You do a lot of soul-searching - 'cause we are not going to win any popularity contests."

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