Kathianne
06-26-2019, 05:06 PM
How absolutely fascinating:
https://newrepublic.com/article/154307/clarence-thomas-precedent-ameri (https://newrepublic.com/article/154307/clarence-thomas-precedent-america)
Clarence Thomas’s Unprecedented AmericaThe Justice has always shown a disregard for precedent, but with a shift in Supreme Court personnel, undoing progress could be the law of the land.
By MATT FORD (https://newrepublic.com/authors/matt-ford)
June 26, 2019
...
It’s been a busy term for Thomas, who is always one of the court’s most prolific writers. His concurring opinions and dissents have long offered an unorthodox view of the court’s precedents and practices that set him apart from his colleagues. As the court’s conservative bloc reasserts itself after Anthony Kennedy’s retirement, Thomas is reasserting his constitutional vision as well—one that points toward a society that’s radically different than the one experienced today.
Since joining the court in 1991, Thomas has never shied away from identifying the precedents with which he takes issue. But the 2018–2019 term stands apart for the magnitude of his calls. In February, the court declined to hear McKee v. Cosby, a defamation case brought against Bill Cosby by Katherine McKee, who accused him of rape in 2014. The dispute turned on whether McKee’s decision to come forward made her a “limited-purpose public figure,” which would make it harder to prove Cosby had defamed her. Thomas agreed with his colleagues’ decision not to take up the case, but wrote a concurring opinion to call upon them to reconsider the 1964 decision New York Times Co. v. Sullivan, which is the touchstone of modern American libel law.
...
“That provision ‘as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel,’” Thomas wrote, quoting the late Justice Antonin Scalia. “Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel.” He stopped short of calling for the reversal of Gideon v. Wainwright and related cases that required states to provide lawyers for defendants who can’t afford them. Instead, Thomas wrote that he would “proceed with far more caution than the Court has traditionally demonstrated in this area.” Though Alito declined to join this part of Thomas’s dissent, Gorsuch was all in.
The list goes on. Last year, Thomas questioned the validity of Mapp v. Ohio, the 1961 case where the court held that the Fourth Amendment required states to exclude illegally obtained evidence from criminal trials. In a major death-penalty case in 2015, he joined a concurring opinion by Scalia that suggested overturning a broad swath of the court’s Eighth Amendment rulings since 1958. One legal scholar told The New York Times this spring that Thomas has written at least 250 concurring or dissenting opinions calling for the court’s past decisions to be revisited.
...
Thomas takes a different view of stare decisis than many of his colleagues: He doesn’t seem to believe in it. “Stare decisis doesn’t hold much force for you?” a federal judge asked Thomas during a Federalist Society event in 2013. “Oh, it sure does,” he replied. “But not enough to keep me from going to the Constitution.” That leads to the other reason why he’s so outspoken, which is ideological. Thomas identifies as an originalist, meaning that he interprets the Constitution based on what he views as the original public meaning of its clauses and amendments when they were drafted.
...
Some of Thomas’s efforts to reconsider American law could lead to positive outcomes. In recent years, he has urged his colleagues to reconsider a 1950 decision where the Supreme Court held that veterans can’t sue the federal government for injuries that arose during their military service. In 2017, he wrote a concurring opinion in an unremarkable civil-forfeiture case that questioned the legitimacy and legality of the practice. More recently, he also joined a growing revolt in the legal community against the court’s qualified-immunity rulings, which makes it harder for Americans to sue public officials for violating their civil rights.
...
https://newrepublic.com/article/154307/clarence-thomas-precedent-ameri (https://newrepublic.com/article/154307/clarence-thomas-precedent-america)
Clarence Thomas’s Unprecedented AmericaThe Justice has always shown a disregard for precedent, but with a shift in Supreme Court personnel, undoing progress could be the law of the land.
By MATT FORD (https://newrepublic.com/authors/matt-ford)
June 26, 2019
...
It’s been a busy term for Thomas, who is always one of the court’s most prolific writers. His concurring opinions and dissents have long offered an unorthodox view of the court’s precedents and practices that set him apart from his colleagues. As the court’s conservative bloc reasserts itself after Anthony Kennedy’s retirement, Thomas is reasserting his constitutional vision as well—one that points toward a society that’s radically different than the one experienced today.
Since joining the court in 1991, Thomas has never shied away from identifying the precedents with which he takes issue. But the 2018–2019 term stands apart for the magnitude of his calls. In February, the court declined to hear McKee v. Cosby, a defamation case brought against Bill Cosby by Katherine McKee, who accused him of rape in 2014. The dispute turned on whether McKee’s decision to come forward made her a “limited-purpose public figure,” which would make it harder to prove Cosby had defamed her. Thomas agreed with his colleagues’ decision not to take up the case, but wrote a concurring opinion to call upon them to reconsider the 1964 decision New York Times Co. v. Sullivan, which is the touchstone of modern American libel law.
...
“That provision ‘as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel,’” Thomas wrote, quoting the late Justice Antonin Scalia. “Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel.” He stopped short of calling for the reversal of Gideon v. Wainwright and related cases that required states to provide lawyers for defendants who can’t afford them. Instead, Thomas wrote that he would “proceed with far more caution than the Court has traditionally demonstrated in this area.” Though Alito declined to join this part of Thomas’s dissent, Gorsuch was all in.
The list goes on. Last year, Thomas questioned the validity of Mapp v. Ohio, the 1961 case where the court held that the Fourth Amendment required states to exclude illegally obtained evidence from criminal trials. In a major death-penalty case in 2015, he joined a concurring opinion by Scalia that suggested overturning a broad swath of the court’s Eighth Amendment rulings since 1958. One legal scholar told The New York Times this spring that Thomas has written at least 250 concurring or dissenting opinions calling for the court’s past decisions to be revisited.
...
Thomas takes a different view of stare decisis than many of his colleagues: He doesn’t seem to believe in it. “Stare decisis doesn’t hold much force for you?” a federal judge asked Thomas during a Federalist Society event in 2013. “Oh, it sure does,” he replied. “But not enough to keep me from going to the Constitution.” That leads to the other reason why he’s so outspoken, which is ideological. Thomas identifies as an originalist, meaning that he interprets the Constitution based on what he views as the original public meaning of its clauses and amendments when they were drafted.
...
Some of Thomas’s efforts to reconsider American law could lead to positive outcomes. In recent years, he has urged his colleagues to reconsider a 1950 decision where the Supreme Court held that veterans can’t sue the federal government for injuries that arose during their military service. In 2017, he wrote a concurring opinion in an unremarkable civil-forfeiture case that questioned the legitimacy and legality of the practice. More recently, he also joined a growing revolt in the legal community against the court’s qualified-immunity rulings, which makes it harder for Americans to sue public officials for violating their civil rights.
...