Tag: justice clarence thomas

H/T Justice Clarence Thomas

It’s now been two weeks since the landmark decision upholding Obamacare.  Most of the attention has, understandably, been on Chief Justice John Roberts since he turned out to be the pivotal vote in the 5-4 split on the Supreme Court.  Still, for anyone who takes seriously the fact that the Constitution established a federal government of limited and enumerated powers, there is one Supreme Court Justice that consistently stands head and shoulders above the rest–and that’s Clarence Thomas.

Thomas’s opinion in the Obamacare case was quite short–just a few paragraphs–and that’s because he previously filed a lengthy opinion in the landmark Lopez ruling in 1995, the first ruling in some 60 years where the Supreme Court finally applied the brakes to federal laws that were based upon a boundless reading of the commerce clause.  Thomas explained how the federal government had assumed vast powers under the commerce clause that were inconsistent with the original understanding of the Constitution.  After having explained his view at length, Thomas now files only terse opinions that refer readers back to what he said in the Lopez case.

In 2010, for example, when the Supremes upheld a federal criminal law against a constitutional challenge, Thomas said the Court’s majority  ”genuflects” to the doctrine of enumerated powers but then “endorses the precise abuse of power that Article I is designed to prevent–the use of a limited grant of authority as a ‘pretext … for the accomplishment of objects not intrusted to the government.‘ “   The other justices tend to ignore Thomas’s reasoning.  They satisfy themselves with a bland … “Our precedents about the commerce clause say it is a very broad power, etc etc”

Thomas rarely asks questions during the Court’s oral arguments.  He prefers to stay out of the spotlight and let his written opinions speak for themselves.  And because his views are clearly articulated, everyone (academics, reporters, Supreme Court advocates) knows where he stands, so they focus on the “swing vote” and speculate about which direction some justice will ”swing.”

Be that as it may, let’s not take Justice Thomas for granted.  He regularly calls out the Emperor for not having any clothes. Since one can safely assume that George H.W. Bush did not plan that out (his other selection to the Supreme Court was David Souter, after all), luck was in play.

For more on the Obamacare ruling, go here.  For a good book about Clarence Thomas’s views, go here.  If you’re not ready for a book, do check out Thomas’s opinions in these cases:  Lopez (1995), Morrison (2000), Sabri (2004) Raich (2005), and Comstock (2010).  David Bernstein has some related thoughts here.

Supreme Court Non-Rulings More Important Than Cases It Actually Hears

While all the hot constitutional action of late, on issues ranging from Obamacare to gay marriage to immigration, has been in the lower courts — or even in Congress! — the Supreme Court still goes about its daily business.  After last year’s blockbuster term, however, this term is pretty low-profile aside from a spate of First Amendment cases (funeral protests, violent video games, school choice tax credits, public financing of election campaigns, etc.).  And so it was yesterday, when Supreme Court arguments over securities law and Western water rights were overshadowed by news of cases on which the Court decided not to rule:

  • Without comment, the Court denied an unusual request — a petition for a writ of mandamus — in the Gulf Coast global warming lawsuit, Comer v. Murphy Oil.  This is the case, you may recall, where the Fifth Circuit lost its quorum as it was about to hear the en banc (whole court) appeal of a panel ruling that allowed the suit to proceed, resulting in the odd situation of the appeal being dismissed altogether and the district court decision to dismiss the lawsuit being the law of the case.  Those complicated procedural twists would’ve made for an ungainly case, but the Supreme Court will hear a different global warming–related case, which I also previously discussed and in which Cato filed a brief
  • The Court declined to review the constitutionality of a federal ban on felons’ possession of body  armor (e.g., a bulletproof vest) — in a challenge arguing that these are issues properly left to the states, there being no interstate commerce connection.  In ruling for the government, the Ninth Circuit (always them!) had applied a precedent that antedated the seminal cases of Lopez (1995) and Morrison (2000), where — as you know if you’ve been paying attention to the Obamacare lawsuits — the Court struck down the federal Gun-Free School Zones and Violence Against Women Acts, respectively, as beyond Congress’s power to regulate interstate commerce.  Notably, Justice Thomas, joined by Justice Scalia in all but one footnote, filed a trenchant dissent from this cert denial (starts on page 33 here), saying that, ” Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence…. [The lower court’s] logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.”  Perhaps more notably, neither the Chief Justice nor Justice Alito joined Thomas’s dissent.  (H/T Josh Blackman)
  • The Court also declined to review the constitutionality of criminal convictions by non-unanimous juries — which are only allowed in Oregon (the place where this case originates) and Louisiana — denying a cert petition filed by UCLA law professor Eugene Volokh.  The interesting angle here is that it’s not at all clear whether (1) all the rights protected by the Bill of Rights — here the Sixth Amendment requirement that jury convictions be unanimous — are “incorporated” against the states and (2) whatever incorporation there is goes through the Due Process Clause or the Privileges or Immunities Clause (which is important for courts’ consideration of the scope of constitutional rights).  Recall that in McDonald v. Chicago, the Court extended the right to keep and bear arms to the states but could not agree on the jurisprudential methodology for doing so — yet still hinted that it would be open to revisiting these issues in a case relating to unanimous jury verdicts… but apparently not yet.
  • The Court took off its argument calendar a case regarding the sovereign immunity of Indian tribes, specifically whether that doctrine prevents the enforcement of property taxes against those legally peculiar entities.  This is a huge issue for federalism, state revenues, and a host of other policy matters — and is quite complex legally — but New York’s Oneida tribe, perhaps fearing what would have been an epic loss at the Supreme Court, here decided to waive its immunity claim and thus moot the case.

After all this “active non-action” — which may be how the government next tries to characterize the non-purchase of health insurance in its next attempt to somehow find constitutional authority for the individual mandate — the Court did release one opinion of note today.  The opinion itself, in a technical bankruptcy case regarding the compelling issue of whether a debtor can take a car-ownership deduction if she does not make loan or lease payments, is not particularly noteworthy, but the author — rookie Justice Elena Kagan — is.  And so, with 18 dry pages and over a lone dissent by Justice Scalia, the Kagan era has begun.

First, They Came for the Sex Offenders

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with – here is her commentary on the Heller case) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

I saw this firsthand last summer when I attended a scholars meeting with the Obama administration’s Detention Policy Task Force (the same one that Andy McCarthy publicly refused to attend). I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.

I responded forcefully that such a system is antithetical to American traditions of due process. Battlefield detention is necessary to incapacitate insurgents and terrorists overseas, and is often employed in lieu of killing them. Broad powers of detention without trial in the criminal context do not make Guantanamo less controversial; they bring it on to our shores and in to our courtrooms. If we have enough information to show that someone is a threat by a preponderance of the evidence in order to detain them, we probably have enough to indict them for conspiracy. One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.

Would the votes in Comstock translate into a Supreme Court ratification of such a system? Probably not, since Kennedy and Alito stressed in their concurrences that the circumstances in Comstock are unique. And Hamdi showed us that Scalia takes habeas corpus rights seriously when it comes to citizens. Unfortunately, only Stevens shared this view and he looks to be replaced by Elena Kagan, who argued that civil commitment in Comstock was an extension of Congress’ power to create and run a prison system (not an enumerated power). But this isn’t about counting the noses currently on the Court; it’s about creating a new normal where the people in prison are detainees, not defendants.

Unfortunately, there are more than a few people in favor of such a system. Jack Goldsmith and Neal Katyal (now the acting Solicitor General) propose a terrorism court. Sens.  McCain and Lieberman want to treat all terrorism suspects as enemy combatants. Sens.  Lieberman and Brown want to strip the citizenship of terrorism suspects and try them by military commission. Sens. Graham and McCain plan to close Guantanamo by creating a preventive detention court. Take a conservative plan to deal with enemy combatants captured on the other side of the world, strap on some liberal angst over tea parties and militia groups, and you’ve got a bipartisan plan for wholesale degradation of everyone’s liberties.

And when the proposal comes, the first thing they’ll say is that this is how we already deal with sex offenders.