Posted on 09/01/2011 2:01:19 AM PDT by stevelackner
Jeffrey Toobin recently wrote in the pages of the New Yorker about Clarence Thomas. As an article overall, it has faults some of which I shall focus on, but is worth reading nonetheless. He writes that "[t]he conventional view of [Supreme Court Justice Clarence] Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia." I have heard Thomas speak, and he says that he thinks the oral arguments are rather pointless, and to some extent he is probably correct, as the minds of the Justices are largely already made up at that point. It is more for lawyers, on the bench asking questions and making the arguments below to hear the sound of their own voices. However, Toobin declares that it is time to realize that Thomas "has emerged as an intellectual leader of the Supreme Court." The truth is that he did not "emerge" as such a leader, but has always been one. It is important to analyze Toobin's article and to wonder why a writer that is no friend to Thomas's originalist jurisprudence has decided to write an important article changing this narrative. It is important to evaluate the most important and relevant claims made about and against Justice Thomas, indubitably the finest Supreme Court Justice on the high court.
The belittling of Justice Thomas for all these years is nothing short of shameful and disgusting. Reading his opinions show that he is in fact the finest Justice currently on the Supreme Court. Perhaps the reason that people like Toobin are trying to only now change the meme about Thomas from dunce to "intellectual leader" is because they sense a growing interest around the country in returning to the original Constitutionalism that Thomas most loyally on the Supreme Court attempts to espouse. Given the resurgence in interest in Constitutionalism of late with the Tea Party and more, and the fact that Thomas has actually paved the way in some cases that the Supreme Court later followed, opponents of Thomas are beginning to perhaps feel their big government unconstitutional agenda is threatened in the words of Toobin by the "implications of Thomas’s leadership for the Court, and for the country." In order for people to realize this, Thomas is now being transformed in the pages of the New Yorker from idiot to intellectual so that he will be taken more seriously as a challenge to their decades long Supreme Court hegemony.
The article begins by stating that Thomas "was compelled to amend several years of the financial-disclosure forms that Supreme Court Justices must file each year." Thomas has said the employment of his wife, Virginia Thomas, was “inadvertently omitted due to a misunderstanding of the filing instructions.” Whether misunderstanding government filing instructions seems plausible is up to you, but it is really irrelevant. Anyone who has read Justice Thomas's dissent in Gonazalez v. Raich (2005) and other cases would find it quite obvious how he is going to rule on Obamacare, regardless of whatever work his wife does. His position is already well known not because of who he is married to, but because of his own past judicial opinions. The point is really, as Toobin then immediately points out, "that seventy-four members of Congress called on Thomas to recuse himself from any legal challenges to President Obama’s health-care reform, because his wife has been an outspoken opponent of the law." Ginnie Thomas's work is not a minor issue mentioned in the article, it is a major thrust of it. In fact, the entire article is entitled "Partners" and the title asks, "Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan?" Ginnie Thomas gets a lot of ink in the body of the article as well, getting an entire section devoted to her, sometimes on matters of obviously very little contemporary importance or of little import to how Thomas will rule. A response to this criticism of Clarence Thomas is therefore mandatory.
Speaking of Thomas's supposed filing omissions, the article itself omits that that this anti-Thomas effort was led by the disgraced liberal Congressman Anthony Weiner. But more importantly, it is without doubt an unadulterated double standard has emerged as the article fails to mention that challenges based on the employment or advocacy of a wife of a jurist on a federal court. Arguably much better claims were made against liberal Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals who is to rule on the Constitutionality of California's Proposition 8 defining marriage as only between a man and woman. Not even one sentence, if just for contrast regarding the issue, not to mention to add balance, was in the article. Reinhardt's wife, Ramona Ripston, is actually related to that specific litigation. Ripston is executive director of the American Civil Liberties Union of Southern California, which actually filed an amicus brief in the district court case under appeal. In contrast, Ginni Thomas is not filing briefs with the Supreme Court any time soon. Yet Reinhardt refused to step aside when lawyers defending Proposition 8 filed a motion requesting that he do so, providing his reasons for not recusing himself in a memorandum which stated:
My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female... In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept...[the] position that my impartiality might reasonably be questioned...because of her opinions or the views of the organization she heads.
It is important to realize that those like Anthony Weiner that led the call for Justice Thomas to step aside on any Obamacare ruling, and those like Toobin in this article that imply they are together working to kill Obamacare from the Supreme Court, have been silent on Reinhardt. Either Reinhardt is right, or else opponents of Thomas must as loudly demand that Reinhardt step aside as well. Of course, reading Justice Thomas's opinions it is obvious that he is true to an originalist judicial philosophy, not to the political predilections of his conservative wife. I am not sure the same could be said for a non-originalists like Reinhardt whose judicial philosophies have little anchoring outside or personal predilections.
Toobin writes that his "intellect and his influence have also been recognized by those who generally disagree with his views." He correctly also writes that "The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way." However, it is not giving voice to the "conservative" public policy cause, but the cause of originalism in Constitutional interpretation. It is his principled adherence and devotion to this only legitimate method of interpreting the Constitution that so duly earns him this admiration.
Toobin importantly writes, "The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties." However, it is not his conservatism that marks his jurisprudence, but his loyalty to the original meaning of the Constitution. Toobin himself concedes that "[m]ore than virtually any of his colleagues, he has a fully wrought judicial philosophy." It is the philosophy that demands that the Constitution be interpreted according to its original meaning. It is why professor Stephen Calabresi at the Northwestern University School of Law is quoted in this article as saying Thomas's opinions have "lots of historical sources and his views are the most principled, even among the conservatives." What Toobin fails to realize is that it is the only legitimate method of constitutional interpretation and that is why Thomas is the real intellectual and principle leader, not because he is "conservative." Originalism is the only way to legitimately interpret the Constitution that is not a manifestation only of the particular Justice's political or policy preferences (see http://www.stevelackner.com/2011/04/case-for-originalism-why-constitution.html for my basic defense of originalism). If adherence to the Constitution itself demands returning to views that would not have validated the New Deal, it is irrelevant if that is the course that the Constitution demands unless amended.
The reason that that "Thomas’s views both reflect and inspire the Tea Party movement" and "accords, with great precision, with Thomas’s own approach" is firstly, as is evident by its very name harkening to the American Revolution, because the Tea Party movement believes in returning to this nation's first principles. Therefore, interpreting the Constitution as originally understood is of course going to be in line with this most basic of Tea Party imperatives. As Toobin writes, even if "it can be difficult to pin down" the Tea Party "stand on any given issue," the Tea Party "is unusual among American political movements in its commitment to a specific view of the Constitution." Toobin then says that "[f]or decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command." But this is not for the Tea Party or Thomas, as if this is a matter of personal political gratification, but what the Constitution itself as agreed to states (understand, as but one example, the original meaning of the Ninth and Tenth Amendments at http://www.stevelackner.com/2011/06/original-purpose-of-two-most-ignored.html). That we have departed so far from the Constitution that loyalty to it is to be associated with only one Justice on the Supreme Court is a demonstration of the current sorry state of affairs.
This article in the New Yorker absurdly states that "Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that [Obamacare] law unconstitutional." That is utterly ridiculous. If the law is declared on non-originalist grounds by a majority of the Justices, it will be no great victory for Clarence Thomas. Toobin warns that "Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach." This is not a tantalization for Thomas, the real tantalization will come for Thomas if he can convince other members of the Supreme Court to join him in his enduring faithfulness to the original meaning of the Constitution.
Toobin understand this, as he accurately writes, "Thomas pays far less deference to prior rulings of the Court than his colleagues do. As he put it..., 'If it’s wrong, it’s wrong, and we are obligated to revisit it.'” But he then declares that "[t]his is a different approach from the traditional conservative position, which stresses the importance of stare decisis—of relying on precedent." This is not in any way the traditional conservative position. It was certainly not the position of the great Judge Robert Bork who never made it to the Supreme Court, nor is it the mainstream view of true conservatives. What are conservatives attempting to "conserve"? All who are conservatives should be so because they are trying to return to the roots of and conserve the founding principles for this country. There is absolutely no rational way that looking to the original meaning of a Constitutional provision at the time drafted and as understood by those who ratified it could be considered anything but the only "conservative" position.
Toobin states that "Thomas...makes little pretense of relying on the words of his [Supreme Court] colleagues and their predecessors when their interpretations conflict with his own understanding of the text of the Constitution itself." Thomas may be wrong in some particular cases, but he is not wrong in his devotion to originalism. He is most loyal not to "his own understanding" of the text, but the original meaning of the text. That meaning, by its very definition, is not his own, but the meaning as originally understood at the time the Constitutional provision was ratified. This method of interpretation demands that one's "own meaning" not be placed above the original meaning. This should be known to Toobin, but is only apparently not truly understood due to ideological blinders. That is why a judicial view like Thomas's must be labeled "conservative" by Toobin when in fact the truth of the matter is that when faithfully applied it is not a political label, but only the true label of Constitutionalism, that Thomas represents. Toobin even quotes Thomas as saying in a dissenting opinion in 2005 that "[w]hen faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning." Toobin is right that Thomas "has been a committed originalist." And he is correct also in his contrast to Justuce Antonin Scalia, who unlike Thomas, "is the figure most often associated with this school of thought, but he refers to himself as a 'fainthearted originalist.' Scalia means that other factors besides his own understanding of the intent of the framers, most especially the long-established precedents of the Court, influence his judgment on the resolution of constitutional disputes. 'If a constitutional line of authority is wrong, he'—Thomas—'would say let’s get it right,' Scalia told a reporter in 2004. 'I wouldn’t do that. He does not believe in stare decisis period.' In other words, there is nothing fainthearted about Thomas’s convictions about the meaning of the Constitution." And that is precisely why Thomas is the most admirable Justice, because there is nothing fainthearted about him when it comes to his dedicaton to the Constitution. That's why, Toobin writes, "No other Justice, not even Scalia, studies the historical record with as much care, and enthusiasm, as Thomas."
In fact, Toobin has pointed out that Thomas was long ahead of the Supreme Court, as Thomas implied in a concurrence, in his understanding that the Second Amendment provided an individual right to bear arms. The Supreme Court itself affirmed Thomas on this point in D.C. v. Heller (2008). Recognizing Thomas as an intellectual of the highest caliber paving the way on the Supreme Court for real originalism is long overdue. The New Yorker article goes on much more, and it's not worthy of analyzing in full. The basic point is to understand what Thomas represents, and why every American needs to work to make sure that all other Supreme Court Justices are cut from the same mold as the great Clarence Thomas.
I kind of think that Toobin is on some kind of medication as he wrote the article. It doesn’t sound like something that he’d typically write.
Amazing, isn’t it?
He's actually praising Thomas for being soooo smart, that SURELY he will see the 74 congressmen's weighty signatures as the will of the people, the original purpose of the Constitution, and recuse himself, thereby FINALLY being loved by the progressive crowd and all the people and the media, finally.
Wont work.
And he will be skewered for it by Toobin subsequently.
That, and he's expecting Obama to nominate another Justice in the next term and wants it a liberal one, likely American of African decent, so pull back on the villification and “stupid” tract used on the current Justice that is AfAm, lest such seem precedent for the nomination process.
When your opponents slap your back, turn around for the coming knife. Clear as plastic wrap.
Don’t forget, the SCOTUS, FBI, CIA, NSA, etc. are FULLY supporting this treason.
IIRC, wasn't our jerkwad idiot of a Vice President the chairman of the Senate Judiciary Committee at the Thomas hearings? It must be sweet to know you are going after the rotten structure of past radical precedents passed by those currently in power.
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