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Is it Clarence Thomasís court?
The Hill ^ | 4/4/2014 | Ben Goad

Posted on 04/04/2014 4:07:44 AM PDT by markomalley

Justice Clarence Thomas’s influence was on full display in the Supreme Court’s landmark decision to strike down a key campaign finance restriction.  

And it’s just one in a string of cases in which Thomas could be dragging the court toward his way of thinking. 

Chief Justice John Roberts penned Wednesday’s plurality decision, which eliminates the limit on the total dollar amount an individual may give to political candidates and committees.

But Thomas, seen by many as the court’s most conservative justice, wrote a concurring opinion that both represented the decisive vote in the 5-4 decision, and beckoned the justices to go further.

Thomas used his opinion to argue in favor of scrapping individual contribution caps altogether by reversing the court’s post-Watergate decision known as Buckley v. Valeo, which held that limits are justified as a measure to stave of corruption.

“This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment,” Thomas wrote. “Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design.”

Thomas is the only Justice calling for the total elimination of individual contribution caps so far, but Wednesday’s ruling in McCutcheon vs. the FEC could give him hope that the court’s majority will eventually reach his conclusion.

It’s familiar terrain for Thomas, who experts said has often staked positions outside of the mainstream, even of the court’s conservative wing, during more than two decades on the bench.

“He is not one for half-measures,” said Tom Goldstein, an appellate advocate who has argued dozens of cases before the Supreme Court.  “He, on more questions than most justices, he is willing to stake out the strongest position.”

For Thomas, that has often meant standing alone. But there have been cases – on Second Amendment and criminal justice issues, for instance – where Thomas started out alone in dissent, only to watch the court “cohere around that once lonely position,” Yale law professor Akhil Reed Amar said.

Thomas famously remains silent during oral arguments before the court, as other justices spar and pepper the attorneys before them with questions. Amar, who described himself as a liberal admirer of Thomas, scoffed at suggestions that he takes his cues from the court’s other conservatives or cedes any of the power that comes with his robe.

"You could make a case that he’s been the most influential,” he said.  “The game isn’t talking at oral arguments.”

Amar likened Thomas to former justices John Marshall Harlan, the only dissenter in the landmark 1896 Plessy v. Ferguson decision backing racial segregation, and William Rehnquist, who was dubbed as “the lone ranger” before the court gradually coalesced around him.

Whether that happens for Thomas will depend in part on the future makeup of the court, as well as the evolution of the law. In that sense, Thomas is taking an “intergenerational” approach to the court’s business, Goldstein said.

“This is the long view, and the long game for what the law is going to be like in 50 or 100 years," he said.

In the meantime, Thomas is subtly pulling the court in his direction simply by virtue of the positions he takes, Goldstein said. In McCutcheon, for example, Thomas’ push to overrule the Buckley ruling altogether likely made the court more inclined to weaken it, he said.  

In other words, the justices need not adopt Thomas’ ideology to be influenced by it.

Goldstein, who publishes the SCOTUS blog providing Supreme Court analysis, said he believed that the court as currently constructed would be unlikely to toss aside contribution limits entirely. But he and other observers of the court said the Roberts court could further loosen restrictions incrementally, perhaps raising the threshold for individual contributions to a candidates.

Still, Thomas’ call to end all contribution limits entirely is not without backing. For instance, a Wall Street Journal editorial in response to the McCutcheon ruling embraced Thomas position.

“But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress,” the Journal said. “Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case.”

TOPICS: Editorial; Government
KEYWORDS: akhilreedamar; buckleyvvaleo; clarencethomas; johnroberts; mccainfeingold; scotus; tomgoldstein; uckleyvvaleo
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I wish it were Thomas' court...or Scalia's court...
1 posted on 04/04/2014 4:07:44 AM PDT by markomalley
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To: markomalley

Thomas or Scalia should be Chief Justice.

2 posted on 04/04/2014 4:10:01 AM PDT by SWAMPSNIPER (The Second Amendment, a Matter of Fact, Not a Matter of Opinion)
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You took the words out of my keyboard.

3 posted on 04/04/2014 4:14:55 AM PDT by Former Proud Canadian (Cruz/Palin 2016)
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To: markomalley

The way to fix campaign fiance is to be completely transparent...

Any donation for any amount must be reported to the FEC within 24 hours with all the pertinent information except any personal information...

Any campaign that fails to report any transaction is fined 100x the amount....

With that system anybody can see who is giving to whom....

4 posted on 04/04/2014 4:23:41 AM PDT by Popman ("Resistance to Tyrants is Obedience to God" - Thomas Jefferson)
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To: markomalley
And it’s just one in a string of cases in which Thomas could be dragging the court toward his way of thinking.

If this line were written by a conservative writer about a black liberal justice, the screams of racism would be headlined in every major paper, and on every msm TV station.


5 posted on 04/04/2014 4:25:03 AM PDT by USS Alaska (Exterminate the terrorist savages, everywhere.)
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To: markomalley

Thomas’ written opinions are also the tightest and most solid. No sophistry or flowery prose for Clarance, just straight up legal analysis. Issue, law, application and conclusion.

6 posted on 04/04/2014 4:30:30 AM PDT by circlecity
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To: circlecity

Pray for Justice Thomas.

7 posted on 04/04/2014 4:37:18 AM PDT by Machavelli (True God)
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To: markomalley

until Roberts was blackmailed for his illegally Irish adopted kids or some early bone smuggling, he seemed like a good conservative bet.

funny how things change when vetting isn’t properly done.

8 posted on 04/04/2014 4:40:32 AM PDT by Vaquero (Don't pick a fight with an old guy. If he is too old to fight, he'll just kill you.)
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To: markomalley

From Scalia’s words, he is often influenced by Thomas’ arguments and positions.

9 posted on 04/04/2014 4:41:45 AM PDT by lepton ("It is useless to attempt to reason a man out of a thing he was never reasoned into"--Jonathan Swift)
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To: USS Alaska
You're probably right.
There's no personal aspersion so vile that it can't be hurled against Clarence Thomas with impunity while the mildest rebuke of a liberal black is met with immediate shrieks about racism.

You can't even express disagreement with Obama's policies without someone suggesting ulterior motives.

10 posted on 04/04/2014 4:45:43 AM PDT by stormhill
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To: circlecity

Yes. Even where there is disagreement on what the ruling should be, you at least know where the line is...what actions you might take that would comply with the ruling, and which would not.

Sandra Day O’Connor was legendary for the unnecessary vagueness, blurry lines, and double talk in her rulings. Some of the current judges follow suit.

11 posted on 04/04/2014 4:46:30 AM PDT by lepton ("It is useless to attempt to reason a man out of a thing he was never reasoned into"--Jonathan Swift)
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To: Popman

Respectfully disagree. The information you provide the FEC is reported to the IRS. It will then be used to persecute patriots by denying them health care and harassing them using tax law. Further the first amendment doesn’t require it. No reporting is my position. Period. Resist the beast.

12 posted on 04/04/2014 4:56:00 AM PDT by Nuc 1.1 (Nuc 1 Liberals aren't Patriots. Remember 1789!)
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To: Popman

It can still be hidden in times of transparency. Take the Obama campaigns.

A billionaire communist sympathizer can purchase $250K in “Visa” gift cards anywhere in the world; all in $25 of funds.

Those cards can then be distributed through an Operations Network to individual American citizens on the street. They are told, “You can spend $10 but $15 must be sent to the Obama Campaign.” At the same time, the Obama Campaign (acting on a suggestion from the Operative Network) makes a policy that doesn’t record personal info for VISA/MC/AmEx card-based donations of $20 or less.

Voila! Soros contributes $150K to Obama.

13 posted on 04/04/2014 5:01:31 AM PDT by Cletus.D.Yokel (Catastrophic Anthropogenic Climate Alterations - The Acronym explains the science.)
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To: stormhill
I remember Obama implying that Thomas was not very bright. Thomas’s opinion on the Second Amendment is considered one of the best opinions ever handed down from the court.

Obama is the one who is not very bright. He is usually lost without his teleprompter. He got through the Presidential debates because both McCain and Romney were easy on him and Romney also had Candy Crowley, the moderator, sticking her nose into the debate.

14 posted on 04/04/2014 5:02:48 AM PDT by FR_addict
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To: FR_addict
Don't forget there were many pictures that seemed to show he was wearing an earpiece. It made sense when you watched his bizarre behavior. Head down, as though he was listening, late on responding as though he was still getting the response through an earpiece.
15 posted on 04/04/2014 5:08:04 AM PDT by liberalh8ter (The only difference between flash mob 'urban yutes' and U.S. politicians is the hoodies.)
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To: markomalley

Thomas was the best pick for the court ever.

There is something special about black conservatives. They are more dependable than any other. I can only assume the need to constantly defend why they are conservative hones their beliefs, while the constant attacks from the left and in particular other blacks drives then further right and solidifies their positions.

16 posted on 04/04/2014 5:09:53 AM PDT by TexasFreeper2009 (Obama lied .. the economy died.)
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To: Popman

Yes but the law was never obeyed anyway. If an illegal contribution was made, it was kept during the critical cash flow need and then in an apology returned. There was no penalty for holding the money during the time of critical cash flow need.

The broken law that needs to be remedied with the death penalty for the offenders has to do with using the government as club to render senseless those attempting to follow the law. The offenses are a grave assault on the republic

17 posted on 04/04/2014 5:16:58 AM PDT by bert ((K.E. N.P. N.C. +12 ..... History is a process, not an event)
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To: markomalley

...if only....

What would be truly interesting is a study of cases where Scalia and Thomas did NOT agree...there can’t be many of those, but it would be a challenge for conservatives to see the differing reasons for those instances.

18 posted on 04/04/2014 5:42:55 AM PDT by SoFloFreeper
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To: TexasFreeper2009

I didn’t care for George HW Bush, but this was his was one of his best decisions-—like picking Dan Quayle to be VP

19 posted on 04/04/2014 6:28:49 AM PDT by RightLady
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To: Nuc 1.1

No reporting is a bad idea. The obama campaign in 2008 reportedly had massive amounts of small donations coming via the internet using prepaid credit cards as well as standard cards. But the campaign disabled security systems on their credit card authorizations which matched names with addresses. So the campaign was able to accept contributions from overseas from donors who may or may not have been Americans. If anonymous campaign cash flows, leftist campaigns will be awash in money from our enemies abroad.

20 posted on 04/04/2014 6:43:14 AM PDT by Sgt_Schultze (A half-truth is a complete lie)
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