The justice who stands aloneJul 20, 2015, Vol. 20, No. 42 • By DAN MCLAUGHLIN
For political observers, the story of the Supreme Court’s recently concluded term was the clash of two great colliding forces. On one side stood the Court’s always-unified liberal bloc, fortified by the apostasies of Republican-appointed Justice Anthony Kennedy and sometimes Chief Justice John Roberts, most prominently in cases involving same-sex marriage and Obamacare. On the other side stood Justice Antonin Scalia, a lion in winter, caustic and witty in his dissents. But for close watchers of the Court, another theme ran through this term: the breadth and depth of Justice Clarence Thomas’s institutional critique of the Court itself for straying from the Constitution, failing to apply its own precedents evenhandedly, neglecting the separation of powers and federalism, and allowing itself to be manipulated by runaway executive agencies.
Like a medieval monk preserving Western culture through the Dark Ages, Thomas soldiered doggedly on, carrying the largest writing workload on the Court, pressing his point in cases small and large, sometimes at odds with his conservative colleagues, often alone. Perhaps history will never return to the path he is marking, but no one can say we weren’t warned.
Supreme Court justices are often little known or understood by the general public, and in Thomas’s case, his image is further obscured by his race, the controversies surrounding his 1991 confirmation, and his famous refusal to ask questions at oral argument. Thomas’s critics outside the legal profession tend to fall back on open attacks on his race (a “clown in blackface,” said Star Trek actor, Facebook meme-sharer, and gay-rights crusader George Takei recently) or unsubtly coded attacks (such as Harry Reid’s assertion that Thomas wasn’t smart or a good writer like Scalia, though Reid couldn’t name any of his opinions).
But behind the slings and arrows of politics and punditry, Justice Thomas has been this term’s workhorse, and not for the first time. According to SCOTUSBlog, he wrote more opinions than any other justice this term, 37 (Justice Samuel Alito was second with 30, Justice Elena Kagan last with 11); the most concurring opinions, 11 (Alito was second with 9, Roberts and Kagan last with 2 each); the most dissenting opinions, 19 (Scalia was second with 15, Justice Ruth Bader Ginsburg last with just 1); and the most total pages of opinions, 432. This is the second time in three years that Thomas has written the most opinions, and they are not filled with breezy rhetoric, but thick with citation to the roots of our constitutional system, from the Magna Carta to John Locke to Blackstone’s Commentaries.
Even from Scalia
But mere volume is not the measure of Thomas’s jurisprudence. For that, one must take a closer look at the many times he has stood against the prevailing winds, warning his colleagues that the Court should consider its own errors and limitations. The cases in which he has split from Scalia—his closest colleague philosophically—are telling.
In Johnson v. United States, the Court struck down part of the 1984 Armed Career Criminal Act, which greatly enhances prison sentences for felons in possession of a firearm who have three prior convictions for a “violent felony.” Scalia wrote the majority opinion. It was a sweet victory for Scalia, who in several prior dissents had argued that the ACCA was unconstitutionally vague in defining “violent felony.” Thomas—noting that he had always thought the ACCA unconstitutional for allowing a judge to impose a long sentence based on facts not found by a jury—nonetheless refused to join the opinion on the grounds that the “void for vagueness” doctrine should be reconsidered. He cited its (comparatively) recent origin, which he traced to 1914 (before that, courts simply refused to enforce criminal statutes in cases where their application was unclear). And he lamented that the Court has not applied the doctrine consistently:
This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. . . . Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels.
Thomas traced how the Court’s “vagueness” cases have struck down whatever kind of law was out of fashion with the Court’s majority in a given era, from economic regulation in the pre-New Deal years (but not after) to obscenity laws in the 1940s to abortion laws (but not laws regulating speech by abortion protesters) today.
Hosted by Michael Graham.3:50 PM, Jun 26, 2014 • By TWS PODCAST
The WEEKLY STANDARD podcast with frequent contributor Adam White on today's Supreme Court rulings.
Nov 4, 2013, Vol. 19, No. 08 • By TERRY EASTLAND
Among the first cases heard by the Supreme Court in its new term is one from Michigan. The state stands accused of violating the Constitution’s equal protection guarantee by requiring equal treatment in public-university admissions decisions. Michigan has committed no such violation. Yet to judge by the oral argument in Schuette v. Coalition to Defend Affirmative Action, the Court, surprisingly, is closely divided. A decision against Michigan would be a setback for equal protection.
Hosted by Michael Graham.6:00 AM, Jul 7, 2013 • By TWS PODCAST
WEEKLY STANDARD executive editor Terry Eastland reviews the Supreme Court's decisions in Fisher v. University of Texas, United States v. Windsor, and Hollingsworth v. Perry.
9:32 AM, Jun 28, 2013 • By DANIEL HALPER
President Obama stopped by the press cabin on Air Force One, as the presidential plane made its way to South Africa. While there, the press had a chance to ask the president about major issues concerning Americans: the scandals, the controversial Supreme Court decisions, immigration, and many others.
Instead, the press asked about Obama's Africa legacy (or lack thereof), China's relationship with Africa, the commitment of U.S. companies to Africa, and whether he'll visit the ailing Nelson Mandela.
Here are the questions asked by the press to the commander in chief:
A dispute among conservatives over the administrative state. Jun 17, 2013, Vol. 18, No. 38 • By TERRY EASTLAND
Last month, in City of Arlington, Texas v. Federal Communications Commission, the Supreme Court’s five judicial conservatives divided on a question concerning the relationship between federal courts and federal regulators. Justice Scalia wrote the decision for a majority that included Justice Thomas, and Chief Justice Roberts wrote the only dissent in the case, which was joined by Justices Alito and Kennedy.
With Fisher v. University of Texas, the High Court can finally put an end to racial preferences in university admissionsOct 1, 2012, Vol. 18, No. 03 • By CARL COHEN
Abigail Fisher, a white applicant to the University of Texas, contends that the university, in giving preference to minority applicants while rejecting her, discriminated against her unlawfully because of her color. The Supreme Court will hear the case this fall; it is likely that Fisher will prevail. The Texas 10 percent law and the special circumstances of that university present complications, of course, but the makeup of the Supreme Court today differs importantly from that of the Court that decided Grutter v.
Advocates of small government shouldn’t look to the Supreme Court for help.
Jul 16, 2012, Vol. 17, No. 41 • By ROBERT F. NAGEL
As is abundantly demonstrated by the commentary on the June 28 decision upholding Obamacare, the drama of constitutional decision-making by the Supreme Court is irresistible. Such a significant issue decided, in effect, by one man! And that man, Chief Justice John Roberts—is he a lawless sellout to political pressure or a brilliant legal statesman? Is the fundamental constitutional principle of limited national powers gone forever? Or has Roberts laid down a subtle doctrinal roadmap that will eventually allow the Court to save our republic?
7:20 PM, Mar 26, 2012 • By ADAM J. WHITE
The solicitor general had an interesting morning. He argued before the Supreme Court's nine justices that Obamacare's individual mandate isn't a "tax"—even though he'll argue tomorrow that the mandate is a "tax." And then the government's top litigator invoked the possibility of incompetent government litigators as a reason to reject an argument raised by the plaintiffs
Welcome to the Supreme Court's review of Obamacare. One day down, two more to go.
The special interests you don't need protection from.3:03 PM, Jul 7, 2010 • By MARY KATHARINE HAM
To hear liberals tell it, the Citizens United decision unleashed a torrent of frightful, unregulated free political speech that will drown out the voices of regular citizens in favor of powerful and nefarious corporate forces.
I happen to be a fan of free speech. I'm not a fan of the alternative, which the government's lawyer in Citizens United admitted would allow the banning of books to "protect" the free speech of non-corporate entities.