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swag

(26,488 posts)
Sun Jul 3, 2016, 02:54 AM Jul 2016

Clarence Thomas Has His Own Constitution, by Jeffrey Toobin

http://www.newyorker.com/news/daily-comment/clarence-thomas-has-his-own-constitution?intcid=mod-latest

excerpt:

The truth is that Thomas’s view of the Constitution is highly idiosyncratic. Indeed, one reason he wrote so many opinions (often solo dissents and concurrences) was that no other Justice, including Scalia, shared his views. Thomas is a great deal more conservative than his colleagues, and arguably the most conservative Justice to serve on the Supreme Court since the nineteen-thirties.

While some Justices are famous for seeking consensus with their colleagues, Thomas seems to go out of his way to find reasons to disagree—often in the most provocative ways. Take, for example, his solo dissent this year in Foster v. Chatman, in which all the other Justices joined Chief Justice John G. Roberts, Jr.,’s opinion setting aside a death-penalty verdict in Georgia. Roberts said that records preserved by the prosecutors in that case showed egregious racial discrimination in jury selection. Prosecutors said one juror “represents Black,” another note said “No Black church,” and other notes identified black jurors as “B#1,” “B#2,” and “B#3,” as well as notes with “N” (for “no”) appearing next to the names of all black prospective jurors. “The contents of the prosecution’s file plainly belie the State’s claim that it exercised its strikes in a ‘color-blind’ manner,” Roberts wrote for the Court, adding, “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” Thomas, alone, was unpersuaded. The prosecutors’ notes, he wrote, provided “no excuse for the Court’s reversal of the state court’s credibility determinations.” (The case reflects a long pattern at the court of Thomas, the only black justice, voting against programs designed to assist African-Americans, and rejecting findings of discrimination against African-Americans.)

The Foster case turned primarily on the facts, but it’s on constitutional law that Thomas is most isolated. Far more than even Scalia did, Thomas endorses originalism—the belief that the Constitution should be interpreted as its words were understood at the time it was written. By a vote of 5–3, the Court struck down Texas’s restrictions on abortion clinics in Whole Woman’s Health v. Hellerstedt, but neither of the other dissenters (Roberts and Samuel Alito) joined Thomas’s opinion. What’s most extraordinary about Thomas’s dissenting opinion in the abortion case is not that he objects to the ruling; as he noted, “I remain fundamentally opposed to the Court’s abortion jurisprudence.” But Thomas also took the opportunity to reject more than a century of the Court’s constitutional jurisprudence. He said that, since the Presidency of Franklin D. Roosevelt, the Court’s interpretation of the Constitution has become an “unworkable morass of special exceptions and arbitrary applications.”

The abortion dissent explains why Thomas is so cut off on the Court, even from his fellow-conservatives. He doesn’t respect the Court’s precedents. He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.

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Clarence Thomas Has His Own Constitution, by Jeffrey Toobin (Original Post) swag Jul 2016 OP
The problem with the world is... Kablooie Jul 2016 #1
Clarence Thomas needs to retire MFM008 Jul 2016 #2
One thing to remember is that a BlueMTexpat Jul 2016 #3
Scalia's own constitution was left to Thomas, per Scalia's will. merrily Jul 2016 #4
Thomas is a man who hates himself. NT aaaaaa5a Jul 2016 #5
This message was self-deleted by its author rjsquirrel Jul 2016 #6
Toobin is an excellent writer underpants Jul 2016 #7

Kablooie

(18,641 posts)
1. The problem with the world is...
Sun Jul 3, 2016, 03:03 AM
Jul 2016

“The problem with the world is that the intelligent people are full of doubts, while the stupid ones are full of confidence.”
― Charles Bukowski

BlueMTexpat

(15,373 posts)
3. One thing to remember is that a
Sun Jul 3, 2016, 05:11 AM
Jul 2016

Justice's law clerks do a large part of the research and drafting of these opinions. Hopefully, employers will be VERY wary of hiring anyone who ever clerked for CT, unless that person resigned in disgust.

In fact, being fired by CT might be a GOOD recommendation.

And yes, he should go. His name NEVER should have been offered for consideration in the first place. That was a callous and calculated decision made by Bush I - one of the MANY reasons why I never liked or admired the man in any way.

Interestingly enough, I began working for the USG at a moderately high level in January 1989 and at least some people I knew thought that it was due to an appointment from Bush I. That made me laugh until I cried. I came in through the regular route, based on having qualifications and experience for the job, and did my share of trench-work before earning my way to a senior-level position. I had actually been offered the position in September 1988, but the security background check took a couple months and then things ran into the holiday season, so it was mutually decided that I begin in January.

Besides, I had been a volunteer for Michael Dukakis in 1988. 1988 was the last time until very recent years that I could actually work on a political campaign in any way because I was "Hatched-out" as the saying goes. I sincerely hope that my phone-banking for HRC this year will not be the kiss of doom for us all! But then I also volunteered in minor local roles for Prez O's 2012 campaign, so perhaps that more recent experience is the marker to go by.

merrily

(45,251 posts)
4. Scalia's own constitution was left to Thomas, per Scalia's will.
Sun Jul 3, 2016, 05:51 AM
Jul 2016

In the overwhelming majority of cases, Thomas agreed with Scalia.


Scalia spouted originalism, but that was phony, IMO. If anyone can find evidence that the writers of the Bill of Rights or those who demanded it as a condition of ratifying the original body of the Constitution, intended the First Amendment to extend to corporations, I'll eat my copy of the Constitution with catsup.

Response to swag (Original post)

underpants

(182,879 posts)
7. Toobin is an excellent writer
Sun Jul 3, 2016, 08:34 AM
Jul 2016

His book "Opening Arguments" about his time on the Walsh special prosecutor team investigating Ollie North is a great read. I never finished "The Nine" but what I read was really good.

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