Supreme Court

Clarence Thomas Castigates SCOTUS for Showing 'Insufficient Respect' to State Laws and State Constitutions

The conservative justice dissents from denial of certiorari in County of Maricopa v. Lopez-Valenzuela

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Last year the U.S. Court of Appeals for the 9th Circuit struck down an Arizona voter initiative which amended the state constitution in order to render all undocumented immigrants charged with "serious felony offenses" ineligible for bail in the state's criminal justice system. Arizona's "unusual, sweeping pretrial detention" restrictions, the 9th Circuit held, "represent a 'scattershot attempt' at addressing flight risk and are not narrowly tailored to serve a compelling interest." The Arizona constitutional amendment was therefore ruled unconstitutional by the federal court.

Not surprisingly, Arizona appealed its loss. Yesterday morning, the U.S. Supreme Court declined to hear the state's case. Because the 9th Circuit's ruling was allowed to stand, Arizona's no-bail amendment was made null and void.

Credit: C-SPAN

End of story? Not quite. In an unusual maneuver, Justice Clarence Thomas filed a sharp dissent attacking his colleagues for their failure to weigh in on the matter. "The Court's refusal to hear this case shows insufficient respect to the State of Arizona, its voters, and its Constitution," Thomas charged.

His dissent proceeded along two lines. First, Thomas left little doubt that he believes the Arizona amendment should have been upheld and the 9th Circuit overturned. The Supreme Court's silence, he wrote, "suggests to the lower courts that they have free rein to strike down state laws on the basis of dubious constitutional analysis."

Second, and much more significantly, Thomas accused his colleagues of failing to do their judicial duty. "It is disheartening that there are not four Members of this Court who would even review the decision below," he wrote. It takes a minimum of four votes for the Court to agree to hear a case.

Thomas' principal complaint is that the Supreme Court is treating the states worse than it treats Congress. "States deserve our careful consideration when lower courts invalidate their constitutional provisions," he maintained. "After all, that is the approach we take when lower courts hold federal statutes unconstitutional."

In other words, when Congress enacts a statute and a lower court decides to strike it down, the Supreme Court agrees to hear the federal government's appeal, even if the justices ultimately conclude that the federal statute deserved to be struck down. Thomas wants the states to receive equal treatment at SCOTUS. "We should show at least as much respect for state laws," Thomas wrote, "as we show for federal laws."

Justice Thomas' dissent from denial of certiorari in County of Maricopa v. Lopez-Valenzuela is available here.

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  1. Speaking of pubic hairs on Coke cans…my dad is getting married. My atheist erstwhile Reagan Republican (now libertarian) dad is marrying an ultra-liberal practicing Christian whose late husband was an Episcopalian minister. We’ll see how that turns out. As long as there’s a rock solid prenup, I’m fine with it.

    1. This sounds like a half-decent basis for a sit-com.

      1. Needs a gay latino neighbor and some spunky kids.

        1. Well, the girlfriend he was crazy in love with (literally, crazy), and who he broke up with 2 days before dating this new woman, lives right across the street.

    2. There is an ass for every seat.

    3. We’ll see how that turns out. As long as there’s a rock solid prenup, I’m fine with it.

      You know what the ultimate prenup is, right?

  2. I think the problem is that the Court shows too much respect for Congress, not that it shows too little for the States.

    1. both maybe?

    2. Too much deference to the Executive (though this Executive has set a modern record for unanimous reversals), and too little for the Several States, and the Congress.
      And, their contempt for “We, the People” is monumental.

  3. So if an illegal immigrant is charged with a serious felony with a strong presumption of guilt, and he is allowed bail (as the 9th Circuit says), then he should be released into his own country? Into the custody of the immigration authorities?

    1. I think the 9th Circuit ruling just says that illegal immigrants can’t be categorically denied bail, not that they must be granted it in all cases. However, it is my understanding that the bail hearing is to be strictly about the individual’s likelihood to appear later, not the nature of his crime nor the strength of the state’s case against him. Those factors are left to the trial proper, and up until a guilty verdict is found, the presumption is of innocence regardless.

    2. then he should be released into his own country? Into the custody of the immigration authorities?

      There might be a conundrum here (although it is kind of academic). If the state wishes for him to be deported rather than jailed, then it could hand him over to the federal immigration authorities, but in so doing would be interfering with his ability to appear in court for trial. The judge might not care, but it still looks like one branch of the state government undermining another. Since the criminal courts are there to determine guilt and administer criminal penalties, while immigration violations are civil matters and deportation is administrative rather than punitive in nature (nominally), there is a conflict of interest between the two (at least on paper).

  4. Thomas accused his colleagues of failing to do their judicial duty. “It is disheartening that there are not four Members of this Court who would even review the decision below,”

    It’s like sitting on the Seattle city council. There isn’t one vote you’re gonna get for the little guy. Not one.

  5. I’m not clear on the jurisprudence here. The 14th Amendment says “nor shall any state deprive any person of life, liberty, or property, without due process of law”. Pretrial detention is a deprivation of liberty. Is not the bail hearing part of due process? Or is only an indictment required to meet the burden of due process? Let us suppose the latter. Then the 14th Amendment says “nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.” Now, is not the bail hearing a legal protection?

    It seems to me that, no matter the amount of “respect” the federal courts should show to the states, the law as it stood in Arizona ran afoul of the 14th Amendment. Unless there is another reading of the 14th, this seems like a poor choice of case to hang the “respect the states” hat on.

    Of course, an illegal immigrant on bail could still be deported by the immigration authorities, but that is beyond the power of the state of Arizona to effect directly. Now, I suppose they could hand the indicted individual over to ICE, then sue the feds if they don’t carry out a deportation. Although they might prefer to throw the individual in jail.

    1. Final “they” should be “the state of Arizona”. Also, I’m not sure that the state could keep an individual in custody for the sole purpose of handing him off to federal immigration authorities. Though they could certainly arrange things such that the net effect is the same.

  6. Hmmm, I guess they could all die resisting arrest or trying to escape.

    Then, send the bodies back to the home country C.O.D., or if they refuse to pay, just start delivering the body bags to the home country embassy.

  7. Good for Justice Thomas. The SCOTUS thing bugs me 1/2 the time, but then I do not know all the laws that apply. . . But I do know the Constitution and when it is ignore and trod upon I get somewhat POed.

  8. They just want to tweak the nose of Sheriff Joe.

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