Tag: clarence thomas

Justice Thomas and That Which Is Not Seen

Featured prominently on the front page of yesterday’s USA Today is Justice Clarence Thomas’s stony visage. The accompanying article by Joan Biskupic purports to be a “look back” at Thomas’s near two decades on the Court. In reality, the article is a thinly veiled hit piece on Thomas’s principled commitment to originalism, his understanding of the proper role of the judiciary, and his belief in the law.

Keying on Thomas’s “hard line” on criminal defendants, the article spends most of the time listing a rogues gallery of Thomas opinions that have been carefully chosen to pull at the heart strings and incense readers unfamiliar with the principles that stand behind Thomas’s positions. The gallery includes:

  • denying re-sentencing to a convicted drug dealer who had “entered rehabilitation and turned his life around”;
  • dissenting in a case “involving a Louisiana prisoner who had been shackled and punched by guards as a supervisor looked on”;
  • dissenting from a “decision against Alabama’s practice of chaining prisoners to outdoor hitching posts and abandoning them for hours without food or water”;
  • writing the majority opinion in Connick v. Thompson (in which Cato filed a brief supporting the defendant) holding that “a former death row convict could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence in a separate armed robbery and led him to testify on his behalf in a murder trial”; and
  • writing separately in the controversial Citizens United case to argue that rules requiring individuals and corporations to disclose their campaign spending violate the First Amendment.

In the wake of such a depressing litany of seeming heartlessness, it’s easy to imagine Justice Thomas cackling like a malevolent super-villain as the world burns around him. No doubt many people think the Court’s conservative wing are little better than black-robed Lex Luthors.

While I certainly don’t agree with every decision of Justice Thomas, including some listed in the article, Biskupic does not even try to account for, with an expert quote or otherwise, why Justice Thomas takes the positions he does.

In 1850, famed French Classical Liberal essayist Frederic Bastiat penned perhaps his most famous piece, That Which is Seen, and That Which is Not Seen. In it he criticizes poor economists who analyze only the immediate, “seen” effects of a policy proposal but ignore the extended, secondary effects that are “not seen.” Bastiat wrote:

In the department of economy, an act, a habit, an institution, a law, gives birth not only to an effect, but to a series of effects. Of these effects, the first only is immediate; it manifests itself simultaneously with its cause — it is seen. The others unfold in succession — they are not seen: it is well for us, if they are foreseen. Between a good and a bad economist this constitutes the whole difference — the one takes account of the visible effect; the other takes account both of the effects which are seen, and also of those which it is necessary to foresee.

Bastiat’s wise words can apply equally to those good judges who understand the extended effects of their rulings and those bad judges who ignore those extended effects in order to focus only on that which is seen. Justice Thomas is in the former category. He has always understood that every Supreme Court ruling affects more than just the parties before the Court, no matter how sympathetic and heartbreaking those parties may be.

Take Justice Thomas’s opinion in Connick v. Thompson. The Orleans Parish District Attorney’s office admitted to violating John Thompson’s civil rights when they withheld crucial evidence from his trial. As a result, Mr. Thompson spent 18 years — 14 in solitary confinement — on death row. The district court awarded $15 million to Mr. Thompson, a judgment roughly on par with the operating budget of the office for an entire year.

Mr. Thompson’s situation is heartbreaking. However, his plight is not the only tragic story at stake. There are other stories that we must imagine. As such, they hit us with less immediate emotional force.

The current economic woes of state governments should remind us that the resources of local government are far from inexhaustible. Large judgments, after all, can mean the elimination of vital services. After Hurricane Katrina, it was in New Orleans that the term “misdemeanor murder” was coined, a snarky riposte to the New Orleans District Attorney’s office lacking the resources to investigate all the claims of murder within the statutorily prescribed time limit. Thousands of felons were released due to the failure to prosecute. The murder rate in New Orleans then set a record.

These effects, of course, cannot be directly traced to the judgment granted to Mr. Thompson. Nevertheless, these are possible real-world consequences of large judgments issued against prosecutors for misconduct. The question in Connick was whether the district attorney’s office itself — meaning the government and the taxpayers — must pay for the unlawful actions of one of its prosecutors. Here we tread on dangerous ground. A broad theory of government liability could threaten to open a “floodgate of litigation” across the country and possibly raise murder rates in cities other than New Orleans.

I disagree with Thomas’s opinion in Connick, but I certainly would not characterize his reasoning as heartless or lacking in consideration for a defendant’s plight. We should have empathy for those on both sides — the seen and the unseen — and not just for Mr. Thompson.

Also, we should remember one of the most important, and most forgotten, maxims in legal philosophy: a good law can sometimes produce bad results. Many may blanch at this assertion, may claim that if a bad result comes from a good law then that law can be tweaked at the margins, given exceptions and codicils. But what would result from this ad hoc process of outcome-oriented adjustments would not be a law, but rather a congealed mass of lawyer-ese backed by force. It would likely fail to give adequate notice as to what is illegal (already a huge problem, as I wrote about here) and it would lack one of the sine qua nons of law: generality. Over-particularizing the law — that is, adding in exceptions, balancing tests, and provisos — does not give life and conscience to the law, it threatens to fundamentally undermine it.

And lastly, remember that every wrong does not have an effective legal remedy. Bending the law to ensure that all wrongs are compensated by someone with sufficiently deep pockets will only guarantee that those living under the law are subject to increasingly arbitrary enforcement. This is perhaps the biggest “that which is not seen.”

Scalia Can No Longer Call Himself an Originalist

As I blogged last week, the Supreme Court didn’t seem amenable to Privileges or Immunities Clause arguments in last week’s gun rights case, McDonald v. Chicago.  This is unfortunate because the alternative, extending the right to keep and bear arms via the Due Process Clause, continues a long-time deviation from constitutional text, history, and structure, and reinforces the idea that judges enforce only those rights they deem “fundamental” (whatever that means).

It was especially disconcerting to see Justice Antonin Scalia, the standard-bearer for originalism, give up on his own preferred method of interpretation – and for the sole reason that it was intellectually “easier” to use the “substantive due process” doctrine.

Josh Blackman and I have an op-ed in the Washington Examiner pointing out Scalia’s hypocrisy.  Here’s a choice excerpt:

Without the Privileges or Immunities Clause … the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment!

Yet this is the line Scalia took last week: Instead of accepting the plain meaning of the Privileges or Immunities Clause—which uncontrovertibly protects the right to keep and bear arms—the justice chose a route that avoids disturbing a 140-year-old precedent rejected by legal scholars of all ideological stripes.

In 2008, Scalia wrote, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” But at the arguments in McDonald, he argued that while the Privileges or Immunities Clause “is the darling of the professoriate,” he would prefer to follow substantive due process, in which he has now “acquiesced,” “as much as [he] think[s it is] wrong.”

Put simply, if the opinion Scalia writes or joins matches his performance last week, he can no longer be described as an originalist (faint-hearted or otherwise).  A liberty-seeking world turns its weary eyes to Justice Clarence Thomas – who has expressed an openness to reviving the constitutional order the Fourteenth Amendment was designed to create – to convince his wayward colleague that the way to interpret legal text is to look to its original public meaning.

Read the whole thing.

Haywood v. Drown

The Supreme Court ruling in Haywood v. Drown got lost in the news last week, but it was an important constitutional case involving the principle of federalism.  The issue concerned the  extent to which the central government can commandeer state judicial systems.  Unfortunately, by a narrow 5-4 vote, the Court gave the central government a green light.

Justice Clarence Thomas filed  another one of his sober, scholarly opinions in dissent and I think he makes the case rather well.  Excerpt:

The Court holds that New York Correction Law Annotated §24, which divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers, violates the Supremacy Clause ofthe Constitution, Art. VI, cl. 2, because it requires the dismissal of federal actions brought in state court under42 U. S. C. §1983. I disagree. Because neither the Constitution nor our precedent requires New York to open its courts to §1983 federal actions, I respectfully dissent.

Although the majority decides this case on the basis of the Supremacy Clause, see ante, at 5–13, the proper starting point is Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The history of the drafting and ratification of this Article establishes that it leaves untouched the States’ plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action.

Until this setback, the Court’s conservatives were doing well in this corner of the law.  In New York v. United States (1992), the Court ruled that state legislatures were not subject to federal direction.  In Printz v. United States (1997), the Court ruled that state executive officers were not subject to federal direction.  This case stood for the proposition that state courts are not subject to federal direction.  Alas, Justice Anthony Kennedy joined the liberals to subordinate the states to federal control.

Here’s a practical example to illustrate the problem.  It’s bad enough when Congress wants to pass a law like the Americans with Disabilities Act (pdf)–a law that will create a flood of litigation.  But what if Congress goes a step further and writes the law in such as way as to say ”take all those time-consuming lawsuits to the state courts. Federal judges and personnel can’t be bothered with that stuff!”  So state courts get clogged or state lawmakers must raise taxes to alleviate the added burden, which blurs accountability.  That’s what is likely to happen. Or, to be precise, continue to happen with increasing frequency.  The feds have permission to foist costs on to the states.

But, to be clear, the main issue here is the proper division of federal and state authority.  Even if Congress were to get around the problem of unfunded mandates by throwing money at the states, each state should retain control over its judiciary.  As Justice Thomas notes, the issue of federal supremacy is too often distorted by liberals.  Within its proper sphere, the feds are supreme.  Liberals want supremacy and federal authority that is plenary.  Wrong.  Obama’s Supreme Court nominee should be asked about federalism and the doctrine of enumerated powers at the confirmation hearings.

Republicans Rediscover Their Big-Government Principles

Sen. Chuck Grassley, who can always be counted on to stick the federal government’s nose where it doesn’t belong, is criticizing Attorney General Eric Holder’s teeny-tiny steps toward a less oppressive enforcement of drug prohibition. Holder said on Wednesday “that federal agents will target marijuana distributors only when they violate both federal and state law. This is a departure from policy under the Bush administration, which targeted dispensaries under federal law even if they complied with the state’s law allowing sales of medical marijuana.”

Grassley says that marijuana is a “gateway” drug to the use of harder drugs and that Holder “is not doing health care reform any good.”

As Tim Lynch and I wrote in the Cato Handbook for Policymakers:

President Bush … has spoken of the importance of the constitutional principle of federalism. Shortly after his inauguration, Bush said, “I’m going to make respect for federalism a priority in this administration.” Unfortunately, the president’s actions have not matched his words. Federal police agents and prosecutors continue to raid medical marijuana clubs in California and Arizona.

And as Justice Clarence Thomas wrote in dissenting from the Supreme Court’s decision to uphold the power of the federal government to regulate medical marijuana:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.

That’s the principle that Chuck Grassley defends. Republicans claim to be the small-government party — and President Obama’s policies on taxes, spending, and regulation certainly justify a view that the GOP is, if not a small-government party, at least the smaller-government party — but they forget those principles when it comes to imposing their social values through federal force.