"Strictly obeying the original meaning of the Constitution can lead Justice Thomas to liberal results"

Yesterday marked the 20th anniversary of Justice Clarence Thomas joining the Supreme Court and the editorial pages of America's newspapers marked the occasion in predictable fashion. Writing in The New York Times, Lincoln Caplan topped off a laundry list of Thomas' alleged judicial sins by pointing out "the most extreme part of Justice Thomas's record," his lack of respect for Supreme Court precedent:

Even to conservatives like Justice Scalia — an originalist, claiming to interpret the Constitution as the framers understood it — stare decisis, or following legal precedents, is integral to Supreme Court law. In guiding the court, that principle favors gradual over sweeping change. It is indispensable in assuring court rulings that are not whims of politics.

That's not the Thomas approach. In pushing the court to reconsider what he has called "wrong turns" in the law, he has argued that "the ultimate precedent is the Constitution."

There's certainly a case to be made for stare decisis, but let's not pretend Thomas is the only one who disregards precedent when it conflicts with his interpretation of the Constitution. Respect for precedent, after all, would have had the Supreme Court follow its 1986 ruling in Bowers v. Hardwick and uphold Texas' notorious ban on gay sex in 2003's Lawrence v. Texas. Or does Caplan think Thomas' dissenting vote in Lawrence was correct because he followed precedent in that instance?

Meanwhile at The Wall Street Journal, former Thomas clerk John Yoo (you may have heard of Yoo for other reasons) made an important point about Thomas that his detractors usually don't bother to mention:

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 marijuana 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.

Comments

[wareagle]

Lincoln Caplan topped off a laundry list of Thomas' alleged judicial sins by pointing out "the most extreme part of Justice Thomas's record," his lack of respect for Supreme Court precedent
----------------------------

so Thomas is extreme because he chooses to interpret the Constitution for himself instead of relying on the opinions of other justices. Who the hell does he think he is, an independent thinker?

[Elder Scrolls Enthusiast AuH20]

Strictly obeying the Constitution can lead to liberty based results

There. FIFY.

[Tman]

Well done. I wasn't aware that Yoo had clerked for Thomas either.

Interesting.

[Juice]

Let's see. I strictly follow the commerce clause, the 16th amendment, the general welfare clause, and the necessary and proper clause and I end up with a liberty based result. Right?

[R C Dean]

Well, more liberty than we have now.

Following the commerce clause would mean most of the current federal regulatory state would disappear. Following the general welfare clause could do away with the redistributive state (if we take seriously Madison's remarks about no clause in the Constitution giving the government power to expend money charity).

[robc]

To me, stare decisis is like relying on the physics of Isaac Newton. Most of the time, that is fine, but when he is wrong, he is wrong, and shouldnt be followed.

Some will counter that the law isnt like science. Which yeah, is true, which is the law's problem. It should fix that.

[Suki]

+1

[This Dave]

Why do I get the feeling that Caplan only supports stare decisis when it favors his opinions?

[Almanian]

It's a good thing they followed precedent in Roe v Wade and didn't make up shit whole cloth out of the "penumbra and emanations" of that 100+ year old document, eh NYT?

Oh, wait...

[Plessy v. Ferguson]

Get in line, we were here first.

[Slaughterhouse Cases]

Hey, quit crowding, will ya?

[Juice]

Governments (and lots of people really) tend to wrap their desires in a veil of principle. They usually even believe that they are acting out of deeply rooted principles and maybe even logic and justice. But, they are almost invariably just trying to get their way.

[Blight Engine]

By my emotional reactions I would be for the death penalty. By my principles I am against the killing of anyone who is no longer in a position to be a threat. This is a phenomenon I have experienced on a number of issues. Even those who knew me before and after will -- much like your observation -- accuse me of "following the logic of my wishes" until I remind them of "before."

Principles, thoroughly proven and carefully examined, have changed me.

[.]

I would point out that anyone who has already killed will forever be "in a position to be a threat" as long as they are alive.

Yes, even in prison, guards and prisoners count too.

In short, I'd point out your policy makes no fucking sense.

[Chris]

Ridiculous answer given the 'in a position to be a threat' is synonymous with 'immediate threat.' As in, it is cowardly immoral to kill someone who is defenseless. His answer makes perfect sense, where as your, 'anyone who has already killed' does not even bother to qualify for soldiers, cops, mercenaries or anyone who has ever killed in self defense. Who was being logically sloppy then? You were.

[?]

Ridiculous answer given the 'in a position to be a threat' is synonymous with 'immediate threat.'

I don't see any reason to "give" that to you. A threat doesn't have to be an "immediate threat" to be classified as a threat - or to be just as dangerous.

[Tim Wise]

God you liberals are vile.

[Colin]

If the Court always respected precedent, we'd still have school segregation.

[Raven Nation]

Exactly. The precedent argument is such BS. It really means, "we should honor the precedent we agree with." I remember having this conversation with an academic friend who stressed precedent and I asked them if they still supported "Plessy." After watching the slow moving gears in their head realize what had happened their response was along the lines of "We should, of course, overturn bad precedent."

[L13]

Sounds like your academic friend is capable of overturning his own bad precedent if wacked across the head hard enough. At least you didn't have to use the 2x4 approach required by a mule.

[Raven Nation]

No kidding.

[Sku]

"If the Court always respected precedent, we'd still have school segregation."

How do you know? How do you know it wouldn't have been changed on the state and local level pretty much across the board within the next 10-15 years without federal force and due instead to social and cultural pressure, therefore resulting in a less problematic and more productive integration?

[Barely Suppressed Rage]

Yeah, everyone in Virginia and Alabama was just clamoring for desegregation of schools. It so totally was inevitable anyhow.

[Boris]

his lack of respect for Supreme Court precedent:

This is feature, not bug.

[Boris]

In guiding the court, that principle favors gradual over sweeping change.

Serious question, was Roe V. Wade gradual or sweeping change?

[wareagle]

same question might be asked of Brown v. Board. And Kelo, which stands the question of precedent on its head.

[Blight Engine]

Sweep. One of a very few.

Wasn't there an article here about how small judicial activism really is?

[califronian]

It COULD have been sweeping but it wasn't. Blackmun twisted himself into knots trying to justify a right to abortion and NO OTHER POSSIBLE medical prodedure, device, or other freedom of the body.

He had the chance to issues a sweeping new interpretation that protected all one's personal choices about their body from government influence but that would have torn down much of his TEAM's efforts. So instead he tied himself into knots trying to show that the constitution somehow protects your right to an abortion but ONLY an abortion and no other medical procedures or any other practice that affects your body.

He was a hack. And not a very good one.

[Lord Jubjub]

If you consider the Griswold v. Connecticut part of the process, than not necessarily quite so sweeping.

There were cases before Brown that attempted to force states to truly provide equal resources. By the time Brown came up, the court had decided it wasn't possible.

[Wayne]

Based on his reading of the Commerce Clause, for example, he unsuccessfully urged his brethren to strike down most of the federal drug laws...

I am certainly no liberal, but that would be the most liberating event in my lifetime. It might restore some of the "freedom" in the land of the free.

[MJ]

"There's certainly a case to be made for stare decisis, but let's not pretend Thomas is the only one who disregards precedent when it conflicts with his interpretation of the Constitution. Respect for precedent, after all, would have had the Supreme Court follow its 1986 ruling in Bowers v. Hardwick and uphold Texas' notorious ban on gay sex in 2003's Lawrence v. Texas."

Mr. Root makes the mistake that the Left's respect for stare decisis is actually a principle on their part. It is not. Rather, it is a tactical stance to defend past progressive Supreme Court victories from ever being questioned again, especially Roe v. Wade, but also less infamous, but perhaps worse, in the long term, usurpations like Wickard.

[Ballchinian]

This. Lincoln is shrieking about the importance of stare decisis only because jurisprudence guided by fidelity to the Constitution's original public meaning threatens several of the legal cornerstones of progressivism. But whenever stare decisis might prove a barrier to the progressive project, liberal concerns over the pace of legal change and the predictability of legal outcomes go straight out the window.

It's all TEAM RED TEAM BLUE bullshit.

[califronian]

^THIS

Stare decisis is the liberal version of "activist judges" criticism from the left. Hold onto precedent because it is precedent.

With that in mind we should be rounding up the japanese and holding them in camps no?

[This Dave]

Holding suspected terrorists without trial in Gitmo < Imprisoning the enemy's entire race < blowing up suspected terrorists without trial using drones

Because Red< Old Blue < Current Blue

[toaster oven]

Does liberal constitutional theory even have a name?

[x,y]

Yes, when Kennedy feels like it.

[Elspeth Flashman]

It's something like "the constitution is a living document."

[Barely Suppressed Rage]

"Active liberty."

See Breyer's book of that name.

[cw]

Maybe I don't really understand stare decisis, but if there's precedent, doesn't that mean that it had to start somewhere? And if so, wouldn't that mean a judge had to interpret the Constitution on his own, without precedent? Why can't a later judge do that even if there is precedent?

[wareagle]

go back to the NY Times..it cannot brook the likes of Thomas or any other black conservative. The very combination of the words black and conservative form a kind of pejorative in the liberal mindset.

Just look at the lead in to the pull quote: "the MOST extreme part of Thomas' record..." For the Times, Thomas' record is extreme by default; from there, it is a matter of degrees. It's the left's way of attempting to discredit, diminish, and otherwise minimize the views of a black conservative without actually coming out and saying he is a moron.

[Elspeth Flashman]

precedent means there was a previous decision in a case like this . . . Stare decisis means courts have to abide by their own prior rulings.

[MJ]

Because that means the supporters of the precedent have to defend it on its merits. Defending it on the basis of "that's the way we do things now" is much, much easier.

[L13]

Read the entire Yoo article, and you will shake your head that it was written by the same sychophant writing to defend torture and murder in the name of protecting us.

Was he on drugs?

[Wayne]

he was warring on drugs.

[califronian]

He is our last great justice. From now it's all political hacks. He's the only one with principles and who applies them in rulings.

[L13]

If he's the final one, then the republic is finished. It he's the last one (for a while), then we're going to have a tough time for a while.

I fear he's the final.

[AdamJ]

You don't think Elena Kegan was following her principles when she advocated for banning books on behalf of the United States gov't?

[L13]

That's the problem, she was following her principles, not the original meaning of the Constitution.

[MJ]

Yes, which is why she should not be on the court. She follows her principles, but her principles are lousy.

[L13]

No, actually her principles could be lousy, but if she is faithful to the original text and meaning, I don't care what she believes when she takes off her judicial robe.

[MJ]

Fealty to the orginal text and meaning of the Constitution is apparently not one of her principles.

[Barely Suppressed Rage]

Jeez, now you've planted the vision of Kagan disrobing.

Thanks...

[alittlesense]

Thomas's positions only matter if they spoil the narrative; that he is an eeeeevil conservative.

[L13]

'twould be nice if the fourth estate could understand that there is more to the world than 'conservative' and 'liberal'. We (libertarians) might get a bit more respect.... cause I hate being called a Republican! (I am however a republican... a distinction the will never get.)

[Mr. Mark]

Put me down for sweeping change, rather than gradual change.

I'm a fan of the supremacy clause and its notable lack of any mention whatsoever of the word "precedent."

[A Serious Man]

Why don't they just go ahead and call him an Uncle Tom? It's obviously what liberals are thinking when they use blatant double standards to try to paint Thomas as some extremist.

[This Dave]

You are describing the source of my emotional disgust with those on the Left who hold office. They are frequently, if not usually, dishonest about what they really want. I rarely see this from Republicans. Usually the worse the idea, the more upfront they are about holding it.

[Eduard van Haalen]

Yoo refers to "liberal results" - what does this mean? Does it mean the opposite of conservative results? I think Yoo regards conservative results as meaning stuff the conservative *movement* likes, but the conservative movement has been a disaster for conservatism.

Conservatism the philosophy is great - and there are many people, including public officials like Thomas, who are philisophically conservative.

It's the conservative movement and its followers I have a problem with. They are somewhat vague on the conservative philosophy - except that it generates applause lines. When it comes to real issues, the movement indulges itself in knee-jerk culture-war feel-goodism.

That's why Yoo can list the federal war on drugs as a conservative position, and opposition to it as a liberal position (though I don't see a lot of influential liberals trying to stop it). The federal War on Drugs started in 1914 - the Progressive Era - and was ratcheted up in the 1930s - the New Deal era. Great times for philosophical conservatism!

Then there was the Sixties and hippies and Nixon, so a federal war on drugs became a conservative position - movement conservatives would probably be genuinely baffled and hostile if reminded of conservative support for federalism and even (God forbid) individual freedom. "Why are you talking about federalism - I thought we were talking about the evil weed?"

So good for Thomas conserving the Constitution.

Even if he conserves the liberal parts of the constitution, he's being conservative, since American conservatives are basically conserving a liberal tradition, a tradition which "liberals" often don't want to defend.

[This Dave]

From the Clinton era onward, I never understood the pro-weed vote's apparent belief that the Dems are on their side. On a national level, this seems to be based on virtually nothing.

[BWP]

IMHO, Justice Thomas is more in line with libertarian values and political philosophy than anything as destructive as liberalism.

[Marc Whitney]

Niether liberals nor conservatives would be happy with a strict interpretation of the Constitution based on the meaning of the words and expresions as they were commonly understood when written. Example: Such strict interpretaion of the commerce clause would prohibit the entire "war on drugs" not just marijuana, but opiates and meth as well. Another example: The words of the second ammendment include nothing to suggest they don't apply to RPGs, mortars, etc. such as well a pistols and fowling pieces.

[Iska Waran]

"as they were commonly understood when written"

[Barely Suppressed Rage]

Well, not the "entire" war on drugs - just that portion of it that has only a remote, tenuous connection to commerce among the states. So Gonzales v. Raich wouldn't even have become a federal case. But Congress certainly has the authority, in regulating interstate commerce, to ban the transportation of items Congress has determined to be, for want of a better, more nuanced word, "bad." Because when you're shipping bags of pot back and forth across state lines in exchange for money, that truly is commerce among the states.

As for the Second Amendment, absolutely. The "arms" referred to were understood to be not just hunting shotguns or rifles, but military-style arms, useful to the militia for the common defense - which also would include cutlasses, sabers and mortars, in addition to rifles, muskets, shotguns and sidearms.

[Troy]

There's certainly a case to be made for stare decisis, but let's not pretend Thomas is the only one who disregards precedent when it conflicts with his interpretation of the Constitution.

No, there isn't. Stare decisis is philosophy for slack jaw morons. Many of them happen to be lawyers. If a court gets a decision wrong, fuck them, overturn. Didn't we have a thread just a few days ago where the slackjawed cocksucker Scalia admitted, 1) the Kelo was wrong and that 2) SCOTUS makes decision based on outcome and politics. That garbage can reasoning has led to results all over the place of any given topic.

Pedophile Justice Thomas is correct. The constitution is the ultimate "precedent." SCOTUS has cases with holdings all over the place. So these stare decisis fuckwads simply find a holding already close to want they what then pretend to be some kind of fucking principled agent of reason by attenuating their current case to the outcome they want to reach.

Fuck lawyers, fuck the court, and REALLY fuck that damnable concept "legal Reasoning."

Stare decisin is just one of those fucking idiot concepts that makes these paid off cocksuckers sound all principled when it is actually just another tool in their arsenal to fuck people up the ass.

Did I tell you how much I hate these cocksucking judges?

[mike c.]

Paraphrased Dave Barry joke:
If Iran persists with its nuke program we drop 10,000 lawyers onto Tehran.
If that doesn't work we should do it again but give the lawyers parachutes.

[Masturbatin' Pete]

It's weird to say that Scalia "admitted" that Kelo was decided incorrectly, given that he was a dissenter in that case.

[Amakudari]

I admit I've never understood the obsession with precedent. It's certainly important as it gives judges the answer to how others have solved similar legal questions and how they arrived at their reasoning, but it's not a get-out-of-thinking-free card. If anything, defending a decision as a product of stare decisis rather than other merits almost always means it was a bad decision with a dubious literal basis.

[Nicolas Martin]

There is ample Thomas jurisprudence to offend libertarians, but the bosom of the Kochtopus has always nurtured him.

[NL]

Scalia sure didn't think much of precedent when he ignored Lopez and upheld the drug war in Raich. He pretty blatantly picked holdings designed to follow his favorite policy outcomes.

[Barely Suppressed Rage]

The problem was that the facts in Raich was more consistent with Wickard (precedent!) than Lopez was. So it was easier to argue that the result in Raich was consistent with, if not actually required by, Wickard.

[Barely Suppressed Rage]

...facts ... were more consistent...

[Nike Dunk Shoes]

thanks