“On His Extremist Island”: Clarence Thomas Would Turn Back The Clock
In yesterday’s Supreme Court ruling on official government prayers at town-council meetings, Justice Anthony Kennedy wrote the 5-4 decision arguing that such practices are permissible under the First Amendment. There was a separate concurring opinion from Justices Samuel Alito and Antonin Scalia, but then Justice Clarence Thomas decided to go further than any of his colleagues.
As Dahlia Lithwick noted, Thomas made the case “that in his view the First Amendment religion clauses don’t apply to the states in the first place.”
Wait, really? Yep, that’s what Thomas actually believes.
…Thomas couldn’t get Scalia’s signature for another part of his dissenting opinion, in which Thomas – not for the first time – disputes the notion that the 1st Amendment’s ban on the “establishment” of religion even applies to state and local governments.
Here’s the deal: the first 16 words of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nearly a century ago, under something called the incorporation doctrine, courts ruled that most of the Bill of Rights applies to state and local government, too.
In other words, under the literal text of the Constitution, Congress can’t pass laws interfering in religion, abridging the freedom of speech, or undermining a free press, but once the Bill of Rights was applied more broadly, neither can states or municipalities.
Thomas, however, wants to turn back the clock. If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment. So long as Congress didn’t pass the law, he says, it’s kosher.
Even Scalia, hardly a moderate, seems to think that’s nutty, but Thomas just doesn’t care.
As Michael McGough’s report added, “Thomas has argued, the Establishment Clause ‘is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.’”
This is clearly quite radical, even by contemporary standards, though Thomas isn’t entirely alone on his extremist island – it was just last year when North Carolina Republicans considered legislation that read, “The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”
That bill ultimately failed, as did Thomas’ effort to find justices who would endorse his perspective, but as conservative politics moves sharply to the right, it’ll be worth watching to see just how many Republican officials end up embracing this argument.
By: Steve Benen, The Maddow Blog, May 6, 2014
“It’s Time To Get Creative”: Want To Cut The Rich’s Influence? Take Away Their Money!
Chief Justice John Roberts this week continued his gradual judicial elimination of America’s campaign finance laws, with a decision in McCutcheon v. FEC that eliminates “aggregate” contribution limits from individuals to political parties, PACs and candidates. The decision may not have a catastrophic effect, in a world where individuals were already permitted to donate unlimited sums to independent political organizations, but it is just another move toward the end of regulation of political spending altogether. If Americans want to limit the influence of money on politics, they will have to start getting more creative.
Roberts’ specialty is “faux judicial restraint,” in which he achieves his radical desired goals over the course of many incremental decisions instead of one sweeping one. In this case, as many observers have noted, Roberts pointed to our current easily circumvented caps on political spending as justification for lifting yet another cap, without noting that the Roberts court helped create the current system to begin with. Our campaign finance laws have not quite yet been “eviscerated,” but the trend is clear. Roberts and Justice Clarence Thomas, who penned a partial dissent calling for all regulation of political spending to be eliminated, have something close to the same end goal, but Roberts is willing to be patient in getting there.
As long as Roberts and his fellow conservatives dominate the Supreme Court — and it seems likely that they will continue to dominate it for years to come — campaign finance reformers are going to find themselves sabotaged at every turn. As Rick Hasen says: “It is hard to see what will be left of campaign finance law beyond disclosure in a few years.”
By: Alex Pareene, Salon, April 3, 2014
“The ‘Toil And Trouble’ Of The Bush Dynasty”: The Resurrection Of A Dangerous Political Family
Here’s how I picture Jeb Bush, with his father George and his big brother George, huddled around a boiling cauldron: “When shall we three meet again?/in Florida, Texas or in Maine?”
Any resemblance to the Macbeth witches in thunder, lightning or rain is, of course, intentional. The Washington buzz that Jeb Bush will follow in his brother’s and his father’s footsteps in running for president is a bit scary for democracy. They are not done with us yet. Good and bad things come in threes.
Beware the current wave of nostalgia for Bush rule. They are not the brightest dynasty under the sun, but the House of Bush has staying power. If genial Jeb Bush, the former governor of Florida runs, then we the people will be in for another pounding by an Eastern elitist family. They masquerade their cultural origins as south by southwest. But it all started with Prescott Bush, a Connecticut senator.
As the faithful gathered this past weekend in Texas to mark the 25th anniversary of the first Bush presidency, the Bush men are also re-engineering the family story with help from friends like Jim Baker and conservative cheerleaders in the national media. Even columnist George Will, who scorned the elder Bush, is on-message for Jeb as a moderate man of substance. He practically invented school choice. The rest of the story line goes something like this.
Apparently, the one-term president George H.W. Bush, aka “Poppy,” was a seasoned foreign policy hand who conducted the end of the Cold War with magisterial ease. Skeptics like me think it just happened to happen on his watch. His son, George W. Bush, upset a lot of China with wars of choice that proved feckless. But wait, we now know he has the perceptive sensibility of an artist. We know he could see into the soul of Vladimir Putin, the Russian president, after Putin “dissed” Bush’s dog Barney. The 43rd president told this tale as he explained his portrait of Putin – which is rather good, actually.
A pity that W. missed his calling. He never should have been president of the United States, and not only for his military misadventures. He never lost sleep over commandeering civil liberties. The “war president” did not write home much to a beleaguered, rattled public in the years after 9/11, though his visit to the site of the fallen towers is seen as a high point. While Washington slept, New Orleans wept as Hurricane Katrina raged past the broken levees of the beguiling city. The lame presidential response was the domestic analogue of the haphazard way the wars were being waged abroad. And then came the economy’s pitch downward.
The Bushes set great store by winning, any which way. The fury of the Clarence Thomas Supreme Court hearing back in 1991 went down the way it did because H.W. Bush would not back down on a divisive nominee who made many women’s blood boil. If you remember the Willie Horton political ads against Michael Dukakis in 1988, that was also Poppy’s way of doing business. He has said he’ll do whatever it takes to win, though vision was never his thing.
The family penchant for winning at all costs came to a head in Florida in the Bush v. Gore showdown in 2000. Shakespeare could not have set the scene or the stakes better, with the fate of the nation hanging on a state governed by a brother Bush. All family human resources rushed down there, with Baker leading the way and strategy. If the fight seemed fierce, the outcome felt preordained. The Supreme Court stopped the vote count cold. It was all over, by a 5-4 vote. Indeed Thomas was “the best man for the job,” as Poppy put it in 1991.
Let it not be forgot, this is how the Bush dynasty defines “one man, one vote.”
By: Jamie Stiehm, U. S. News and World Report, April 7, 2014
“Diversity Is A Faddish Theory”: According To Clarence Thomas, Affirmative Action Is Just Like Segregation
Today, the Supreme Court sent the University of Texas’ affirmative action program back for a lower court for review by a vote of 7-1.
Justice Clarence Thomas concurred in that decision but also wrote a scathing concurring opinion saying he would have rejected Texas’ affirmative action program outright as unconstitutional.
In the opinion, which no other justice joined, Thomas called the idea that racial diversity at colleges improves education a “faddish theory.”
“As should be obvious,” wrote Thomas, “there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity.”
Thomas repeatedly compared arguments for affirmative action in college admissions today to arguments for segregation in the 1950s and before. Here’s Thomas:
It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society… The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks…
There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.
He went on to associate his view with the arguments made by the plaintiffs in Brown v. Board of Education, the 1955 decission that prohibited racial segregation in public schools:
My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”… The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.
Thomas also wrote that universities’ arguments about promoting diversity are canards and their real goal with affirmative action is to help black and Hispanic students—but that they’re not actually helping.
He wrote that “discrimination is never benign” and “the University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”
Thomas made two arguments that affirmative action hurts black and Hispanic students: It leads to them being admitted to schools where they have, on average, significantly lower SAT scores than white and Asian students; and it creates an impression (both internal and external) that their admissions are not based on merit.
Given the high bar that Thomas places for allowing any public policy that discriminates based on race, this policy analysis wouldn’t matter for the constitutionality of the Texas program.
By: Josh Barro, Business Insider, June 24, 2013
“America’s Sweetheart, Ginni Thomas”: Did A Justice’s Wife Leak Supreme Court Drama?
NPR legal reporter Nina Totenberg spoke to Bloomberg Law yesterday about the Supreme Court’s recent healthcare reform decision and the subsequent series of stories on the deliberations based on leaks to reporters from court insiders. She made this interesting observation:
“[The leaks] had the earmarks of somebody — somebody or two bodies — who are very angry. Now that’s not necessarily a justice. Could be a justice, could be a law clerk, could be a spouse of a justice.”
Totenberg goes on to say that of course she never tries to learn the identities of other reporters’ sources, but that’s still an interesting bit of … fairly specific speculation, there.
Of course, there is only one “spouse of a justice” that anyone has ever heard of, and it’s America’s Sweetheart, Ginni Thomas.
We already know her husband, Clarence Thomas, is an extraordinarily angry and bitter person, thanks to his memoir, “I Am Still an Incredibly Angry and Bitter Person on Account of That Time Anita Hill Told the Complete Truth About Me.” (And Clarence Thomas is apparently buddies with CBS’s Jan Crawford.) And Ginni made a living, for years, touring the nation telling everyone how awful and unconstitutional healthcare reform was, which means she was probably pretty upset when her husband told her John Roberts voted to kill liberty forever. She’s also known for having really poor impulse control, if her still-hilarious early Saturday morning voice mail for Anita Hill is any indication. So let’s all just assume she’s leaking everything, because she and her husband are so mad and crazy.
(Though Ginni Thomas is still doing video interviews in which she inexplicably doesn’t actually appear for Tucker Carlson’s “The Daily Carlson,” so why didn’t she leak to one of the Caller’s many fine reporters, like Mickey Kaus or the guy who says a black person probably stole his bike? She is an enigma!)
By: Alex Pareene, Salon, July 12
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