Justice Thomas: Twenty Years of Intellectual Clarity
Justice Clarence Thomas was sworn in on October 23, 1991, after a bruising confirmation. Say what you like about the elder Bush; the nomination of Clarence Thomas was a gift that keeps on giving. His fidelity to the original meaning of the Constitution is unmatched -- even by Justice Scalia (although Scalia's dissents are more fun to read). There's a great op-ed by Claremont McKenna professor Ralph A. Rossum detailing Thomas’s version of originalism (ht: NRO Bench Memos):
In the 446 opinions he has written since his confirmation, Thomas has assiduously pursued an original understanding approach to constitutional interpretation and a jurisprudence of constitutional restoration. He has been unswayed by the claims of precedent – by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions.…
That is exactly what sets Justice Thomas apart. Upholding precedent ("stare decisis") is important for lower courts, but it is simply not the highest imperative of a constitutional court -- upholding the Constitution is. At least, that's my view -- John and Richard have gone back-and-forth on Thomas's jurisprudence here at Ricochet.
Thomas is a nightmare for liberals: fearless, intelligent, consistent. And that is why there has been a steadily increasing attack on him. NPR's Nina Tottenberg recently went out of her way to distort his record, as NRO's Ed Whelan recently reported. And that is also why Jeff Toobin's August profile of Thomas in the New Yorker was a thinly-veiled hit piece. Yes, the article starts with an acknowledgment of Thomas's influence -- but that was simply to make liberals pay attention. The rest of the article drags Thomas through the mud by replaying Anita Hill's accusations, and making the utterly preposterous claim that there were witnesses lined up to corroborate Hill's testimony but that "Joseph Biden, the chairman of the Judiciary Committee at the time, decided not to call these witnesses." Of course! Joe Biden had it in his power to sink Thomas's nomination, but he just decided not to. Because that's just the sort of fair-minded non-partisan guy he is. What planet does Toobin live on?
But enough of that, let's raise a glass to Justice Thomas.
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Comments:
Jul '10
Re: Justice Thomas: Twenty Years of Intellectual Clarity
I agree.
Here's a side comment: We all learn that the United States Constitution sets up a system of "checks and balances" on the different branches of Government. What is the check or the balance for the Supreme Court? When did they become the ultimate arbiter of Government? Is there supposed to be a mechanism by which the Executive or the Congress can check the Supreme Court in another way besides enacting a Constitutional Amendment which is undoubtedly a higher bar than a simple veto act?
Apr '11
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Michael Tee: I agree.
Here's a side comment: We all learn that the United States Constitution sets up a system of "checks and balances" on the different branches of Government. What is the check or the balance for the Supreme Court? When did they become the ultimate arbiter of Government? Is there supposed to be a mechanism by which the Executive or the Congress can check the Supreme Court in another way besides enacting a Constitutional Amendment which is undoubtedly a higher bar than a simple veto act? · Oct 20 at 11:53am
If I remember correctly, the Congress has the ability to impeach and remove any of the Justices in the same manner as the President
Sep '11
Re: Justice Thomas: Twenty Years of Intellectual Clarity
One of the best books I have ever read about the Supreme Court and its role in our system is on this very question: The Supreme Court and Constitutional Democracy by John Agresto. He argues Lincoln's position is reasonable (see speech on Dred Scott): the President must enforce a particular decision as it relates to the parties in the case but not take the decision as a "rule of political action" for the future. (He also explores Jackson and FDR's slightly different understandings here.) And for Congress there is impeachment, court-packing, and limiting the appellate jurisdiction. But Agresto argues that Congress has also responded by simply passing legislation in slightly revised form (if the Court had struck it down) or even reenacting the same law. He points to much civil rights legislation as an example. I can't recommend this book highly enough.
May '10
Re: Justice Thomas: Twenty Years of Intellectual Clarity
And, of course, when the Anita Hill Redux (make that reductio ad absurdum) strategy doesn't work, they try to play ethics games. I have a lefty friend- one of those guys who always writes "FOX/GOP" instead of just Fox, and sends me links every week about how Rupert Murdoch is going to jail because of the phone hacking thing in the UK and the WSJ circulation molehill in Europe. His third obsession is that Justice Thomas must resign from SCOTUS because rhis wife works or has worked as a lobbyist, errors on disclosure forms, and associated nonsense.
Dr. Krauthammer was a decade behind- he should have pointed out Thomas Derangement Syndrome for DSM V long before he defined BDS (about Bush).
May '10
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Michael Tee: I agree.
Is there supposed to be a mechanism by which the Executive or the Congress can check the Supreme Court in another way besides enacting a Constitutional Amendment which is undoubtedly a higher bar than a simple veto act? · Oct 20 at 11:53am
Under Article III of the Constitution, Congress has the power to define the Court's appellate jurisdiction (i.e. the Court's power to hear those cases). Most cases are in the Court's appellate jurisdiction except those involving disputes between states and those involving ambassadors. Thus, the constitutional check on the Court's power is that Congress can simply strip the Court of the power to hear certain cases.
Marbury v. Madison came along and allowed the Court to essentially decide it's own jurisdiction on the issue of constitutionality, but that's a whole other discussion.
Jul '10
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Mike Riscili
Under Article III of the Constitution, Congress has the power to define the Court's appellate jurisdiction (i.e. the Court's power to hear those cases). Most cases are in the Court's appellate jurisdiction except those involving disputes between states and those involving ambassadors. Thus, the constitutional check on the Court's power is that Congress can simply strip the Court of the power to hear certain cases.
Marbury v. Madison came along and allowed the Court to essentially decide it's own jurisdiction on the issue of constitutionality, but that's a whole other discussion. · Oct 20 at 2:04pm
So Mike, why is it never used?
May '11
Re: Justice Thomas: Twenty Years of Intellectual Clarity
The Congress also has the ability to simply ignore a SCOTUS ruling. For example, if the Congress had not agreed on the school busing issue, they could simply have withheld funds to enable schools operate buses. The kids would have had to find another way to get to school.
This is a poor example but the concept is there. Basically, the SCOTUS does not have any enforcement power. Thus, if Congress does not want to enforce a ruling, there is nothing the SCOTUS can do about it.
Apr '11
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Boots on the Table
Michael Tee: I agree.
Here's a side comment: We all learn that the United States Constitution sets up a system of "checks and balances" on the different branches of Government. What is the check or the balance for the Supreme Court? When did they become the ultimate arbiter of Government? Is there supposed to be a mechanism by which the Executive or the Congress can check the Supreme Court in another way besides enacting a Constitutional Amendment which is undoubtedly a higher bar than a simple veto act? ·
If I remember correctly, the Congress has the ability to impeach and remove any of the Justices in the same manner as the President ·
But they really shouldn't be impeaching judges for their decisions. Impeachment is a way of enabling our finest legislators to meet the "not in another branch of government" requirement to get where they're needed. The classic way for a Congress to change the SCOTUS if they really want to is by court packing.
In reply to Pilli: Andrew Jackson's famous defiance did not lead to Samuel Worcester actually staying in jail; the SCOTUS has never been formally and successfully defied.
Dec '10
Re: Justice Thomas: Twenty Years of Intellectual Clarity
James Of England
Boots on the Table
Michael Tee: I agree.
If I remember correctly, the Congress has the ability to impeach and remove any of the Justices in the same manner as the President ·
But they really shouldn't be impeaching judges for their decisions. Impeachment is a way of enabling our finest legislators to meet the "not in another branch of government" requirement to get where they're needed. The classic way for a Congress to change the SCOTUS if they really want to is by court packing.
In reply to Pilli: Andrew Jackson's famous defiance did not lead to Samuel Worcester actually staying in jail; the SCOTUS has never been formally and successfully defied. · Oct 20 at 5:15pm
The original intent of the Founding Fathers was each of the coequal branches had the power to determine constitutionality. An early decision of the Supreme Court reserved that right to the Court and the Executive and Legislative branches caved.
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Duane: His third obsession is that Justice Thomas must resign from SCOTUS because rhis wife works or has worked as a lobbyist, errors on disclosure forms, and associated nonsense. I agree, the Ginni derangement syndrome is bad. Remember when some conservatives tried to get judge Reinhard thrown off the prop 8 case because of his wife's ACLU activities? The left went ballistic!
Apr '11
Re: Justice Thomas: Twenty Years of Intellectual Clarity
jetstream
James Of England
Boots on the Table
Michael Tee: I agree.
The original intent of the Founding Fathers was each of the coequal branches had the power to determine constitutionality. An early decision of the Supreme Court reserved that right to the Court and the Executive and Legislative branches caved. · Oct 20 at 5:45pm
That is not my reading of Article III, nor of Federalist 78, which is more explicit. Each member of each branch takes an oath of office, of course, and each adjudicates for himself what that means, but "A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
Apr '11
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Regarding checks on the SCotUS:
The SCotUS became an arbiter and super-legislature by a slow, accretive process permitted by pusillanimous legislators, which accelerated when the Progressives/Liberal Fascists found they could not impose their agenda through democratic means.
Apr '11
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Grendel
Regarding checks on the SCotUS:
I think that Jackson's "now let him enforce it" is apocryphal; certainly he did not defy an order on him. Lincoln said, regarding Dred Scott "We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government." Both believed in limiting themselves by the Constitution even when the Court thought they could act (as in the Second Bank of the US).
Congress only has power to impeach for "Treason, Bribery, or other High Crimes and Misdemeanors." A bad decision is not enough.
Re: Justice Thomas: Twenty Years of Intellectual Clarity
We all have a hard time describing what a "conservative" really is. And we all toss around labels like "RINO" and "Tea Party" and "social conservative."
But can we all agree that the only really solid definition of conservative is, do you think Clarence Thomas is an American hero? If no, then get out of my house. If yes, then let me buy you a drink.
Fair?
Jun '10
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Rob Long
But can we all agree that the only really solid definition of conservative is, do you think Clarence Thomas is an American hero? If no, then get out of my house. If yes, then let me buy you a drink.
Fair? · Oct 20 at 11:13pm
Bingo!
May '10
Re: Justice Thomas: Twenty Years of Intellectual Clarity
Rob Long
We all have a hard time describing what a "conservative" really is. And we all toss around labels like "RINO" and "Tea Party" and "social conservative."
But can we all agree that the only really solid definition of conservative is, do you think Clarence Thomas is an American hero? If no, then get out of my house. If yes, then let me buy you a drink.
Fair? · Oct 20 at 11:13pm
We can also agree that the definition of racism is any kind of opposition to Clarence Thomas or Herman Cain.
You don't like their views? Sample of two, double the sample size cited by the Left, very sensible views for both guys. It has to be racism.
Just sayin'.