President Will, Justice Powell and Chief Justice Wilkinson (HUGH HEWITT slaps little George Will)

HughHewitt.com ^ | October 22, 2005 09:47 AM PST | Hugh Hewitt

[jwalsh07]

Thomas is almost always on the right side when it comes to his vote but very often for the wrong reasons.

Such as?

[Do not dub me shapka broham]

He's made a huge mistake.

A monumental error in judgment.

The good news is that there's still time to remedy the problem.

[Checkers]

Hugh's latest post:

http://www.freerepublic.com/focus/f-news/1508497/posts

[publiusF27]

And Thomas is merely a reliable vote, nothing more. He is a joke in legal circles. He does not advance conservative jurisprudence in any meaningful way.

I thought he did a pretty good job in recent interstate commerce and eminent domain cases.

[counterpunch]

Sure, but you need to read it in context.
I like Thomas a lot, but he gets no respect.
He doesn't win us any converts.

[publiusF27]

OK, now you've got me curious. What context?

[counterpunch]

The context is about Thomas's success in advancing popular support of conservative judicial philosophy, and influencing the next generation of legal minds coming out of academia.
The Democrats have made sure to smear Thomas as much as possible, to prevent defections from their plantation, and they have been quite successful. This nonstop assault on him since his confirmation hearings has had a profound effect. They have managed to keep his credibility low.

Just look at what Harry Reid said about Thomas:
"I think he has been an embarrassment to the Supreme Court."
"I think that his opinions are poorly written."

Reid says this because he knows he can get away with it, and also because all Democrats must constantly push that line.

[publiusF27]

Thomas is a failure because lefties want to smear him?

Seems to me the mark of a success, or at least someone lefties consider a threat.

Besides, the impact of a Justice extends well beyond his lifetime. Thomas will die, lefties will forget they hated him, and still his opinions will live on.

Do they advance conservative thought? No, not really. That is Scalia's job. Conservatives preserve the existing order, and most of our existing order, like Scalia's t>Scalia's thinking on the commerce clause, rests on an old case called Wickard vs Filburn.

Thomas is not a conservative, he's a strict constructionist. His highest priority is fealty to the laws he is interpreting, not preserving the existing order of things. Years from now, when he is dead and gone, people will probably remember that when Scalia was joining with the left, and O'Connor and Rhenquist were somewhat watering down thinking on the right, THOMAS ALONE was saying we should revisit our commerce clause jurisprudence. He also said we should revisit the meaning of "public use" in the Kelo case.

Personal smears don't erase what is written in the opinions. If I were a lefty, I would smear someone who went around questioning federal power like that.

[publiusF27]

OK, trying that again... Scalia's thinking on the commerce clause rests on Wickard vs Filburn.

[PjhCPA]

I've got you beat by two years...who cares. I hate posts like yours.

[counterpunch]

Thomas is a failure because lefties want to smear him?

Thomas is a failure in the legal culture war because lefties who run the law schools and firms want to smear him and have been extremely successful in doing so.

Context is still key.

[publiusF27]

Well, they haven't been successful with me! ;-)

They also haven't been successful in preventing him from writing opinions like in Raich, which say that if Congress can grab power over something by calling it interstate commerce, they will do so, and their power is then only limited by their desire for power.

That's a truth that will live through the ages, long after Thomas and the hatred of him have died.

They also haven't been successful in preventing him from writing opinions like in Kelo, which say that if legislators can grab property by calling inventing a "better public use" in some other private person's hands, they will do so, and their power to grab our property is then only limited by their desire to grab our property and give it to friends and contributors.

That's another truth that will live through the ages, long after Thomas and the hatred of him have died.

I appreciate your point, that the left runs the legal culture by and large, and have marginalized Thomas at present pretty successfully.

But your comment which drew my post was about Thomas' contribution to conservative jurisprudence. That's a long term concept, and Thomas' current unpopularity at law schools has no real bearing on it.

In the long term, Thomas will be seen as a defender of conservative jurisprudence because he had the courage to say we should revisit all these leftist, activist rulings. Joining those rulings, like Scalia has done in the case of the commerce clause, are how to harm conservative jurisprudence in the long run.

[counterpunch]

I appreciate your point, that the left runs the legal culture by and large, and have marginalized Thomas at present pretty successfully.

This is all I was really trying to say.

But your comment which drew my post was about Thomas' contribution to conservative jurisprudence. That's a long term concept, and Thomas' current unpopularity at law schools has no real bearing on it.

Well, if you look at the context of the discussion, it was specifically about the influence Miers would have on the credibility of conservative judicial philosophy. It was broadened to Thomas and I was simply trying to point out that Thomas has been used to ridicule and demonize conservative jurisprudence far more than he has been used to promote it. That's all. I wasn't discussing Thomas's lasting effect on the approach to judicial philosophy, but it appears you want to, so I will provide a few thoughts on that in response to your closing thoughts about it.

In the long term, Thomas will be seen as a defender of conservative jurisprudence because he had the courage to say we should revisit all these leftist, activist rulings. Joining those rulings, like Scalia has done in the case of the commerce clause, are how to harm conservative jurisprudence in the long run.

Well, Thomas's place in history is really unwritten as of yet. Most people whom I've engaged in discussions about Thomas here don't really understand the underlying difference between Scalia's approach with that of Thomas's. Scalia has relied on the well respected text and tradition approach, searching texts such as the Federalist Papers to understand the Framers' intent in their wording of the Constitution. He has been deferential to stare decisis but has tried to narrow its scope to the strictest construction possible. He has stuck very closely to interpreting the exact words of the Constitution in the language of the day of its writing.

Thomas on the other hand is far more radical and idealistic. This is where he gets into trouble with the legal establishment, and why he is denigrated by the top lawyers and professors. His approach is a natural law approach, and he doesn't believe in stare decisis at all. He is the yin to the judicial activists' yang. While judicial activists read contemporary meaning into the Constitution and manipulate it in order to achieve their desired result, Thomas is like a judicial activist transported from 1776 into the future, reading into the Constitution the founding spirit of the Declaration of Independence, and coaxing from it the laws of Nature and of Nature’s God.

Thomas's approach may remain out of favor, or it may one day be "rediscovered" to lead a revolution on legal thought. I suspect more the former than the latter. Eventually the ridicule will die down and he will at least be seen as unconventional and inspired, but in all likeliness, a novelty. I doubt he will make a lasting and meaningful contribution to the approach to conservative jurisprudence.

 

[publiusF27]

Scalia has relied on the well respected text and tradition approach, searching texts such as the Federalist Papers to understand the Framers' intent in their wording of the Constitution. He has been deferential to stare decisis but has tried to narrow its scope to the strictest construction possible.

Well, he certainly wasn't trying very hard to narrow the scope to something that would be in line with the Federalist Papers. Scalia did not search as far back as the Federalist Papers when he wrote his Raich ruling. It was based on the much more recent Wickard vs Filburn case.

It was Thomas who quoted Madison from Federalist 45, where he said this:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.

Whatever Thomas' popularity among left wing lawyers, he is apparently not so unpopular with the American public. George Bush mentioned him as a favorite Justice, promising to appoint more like him, and he got elected twice.

[counterpunch]

Scalia did not search as far back as the Federalist Papers when he wrote his Raich ruling. It was based on the much more recent Wickard vs Filburn case.

Yes, because Wickard v. Filburn establishes actual existing case law. Thomas chose to ignore it precisely because he doesn't believe in stare decisis. Scalia does, so he had no choice but to observe Court precedent, which he narrowly construed. There is your difference.

 

[publiusF27]

Wickard v. Filburn establishes actual existing case law

No question about it, and Scalia is absolutely right as far as that goes. At oral arguments in Raich, Scalia kept asking the attorney for Raich "If the feds can reach wheat on a farm in Wickard, why not medical marijuana consumed by patients in California?"

There is no answer to that question other than: the feds should never have been able to reach that wheat on that farm back then.

You characterized Scalia like this:

Scalia has relied on the well respected text and tradition approach, searching texts such as the Federalist Papers to understand the Framers' intent in their wording of the Constitution. He has been deferential to stare decisis but has tried to narrow its scope to the strictest construction possible.

I'm of the opinion that he has gone beyond deference. He is completely ruled by stare decisis. The Court, in his view, can just never, ever get something wrong. If that is not true, how can he not think it is time to revisit the commerce clause, when the arguments before him are over whether a homegrown cannabis plant or machine gun for personal consumption is a federal matter?

If, as you said, he is searching the Federalist Papers for the intent of the Founders, he is going to find things like the statement above from Mr. Madison. Thomas found it.

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

Homegrown cannabis plant for personal use... within the medical laws of a State? Or one of the few and defined powers? Or maybe nobody's business, but that was not one of the arguments.

The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; .......The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

So I'm to believe Scalia took a look at that and said, "Yep, while the powers of the federal government were to be principally external, there were to be some internal powers, and while the States were to have control over all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State, there were some things to be left to federal control, and homegrown cannabis plants or machine guns for personal use were probably intended to be among those things."

Or maybe he looked at those things and said, "Well, this was never how the Founders intended it, but this is how we've been doing it, and we're going to keep on doing it this way." It goes beyond deference, as I said. He is completely ruled by stare decisis. Home grown cannabis plants, homegrown machine guns, certain California toads, partial birth abortions, being near a school with a gun, rape, possession of kiddie porn, as Justice Thomas said, "virtually anything" is now interstate commerce, or soon will be, as the Raich ruling is expanded.

O'Connor wrote in her dissent that the Scalia and the left wing of the Court had reduced Lopez to a drafting guide, and she was right.

[counterpunch]

He is completely ruled by stare decisis. The Court, in his view, can just never, ever get something wrong.

Then how do you account for Scalia completely ignoring stare decisis of Roe in Planned Parenthood v. Casey?

JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE THOMAS, concluded that a woman's decision to abort her unborn child is not a constitutionally protected "liberty," because (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. See, e.g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520 (SCALIA, J., concurring). The Pennsylvania statute should be upheld in its entirety under the rational basis test. Pp. 979-981.

How is it that Scalia seems to berate the majority opinion, calling it wrong all the time when he dissents?
If he believed the Court could do no wrong, then he would be in the majority every time.

 

[publiusF27]

The spectacle of a Supreme Court Justice pointing out that a right is not specifically mentioned in the Constitution, as if that were somehow proof that it is not a protected right, would have horrified all of the Founders. There was intense debate about even HAVING a Bill of Rights because of the implication that any right not listed was somehow inferior. That is why they wrote the 9th amendment.

Your question does not really answer mine. He ignored it in that case, it is true, following older precedents. So OK, he is not completely ruled by precedent, but his ruling in Raich still goes way beyond "deference" to precedent, and is in no way compatible with what Mr. Madison was saying.