Tuesday, May 12, 2020

Deconstructing Justice Thomas: The Greatest Non-Judge Justice of Them All

By Eric Segall

"He does not believe in stare decisis, period."
      Justice Antonin Scalia on Justice Clarence Thomas

What constrains Supreme Court Justices who serve for life and do not have to worry about re-election? Some people have caricatured my thesis that the Court is not a court and the Justices are not judges by suggesting that I believe there are no limits on the Justices' decision making, but that is not true. As I discuss below, there are a number of limits on how the Justices do their job.

I have to discuss these limits at some length before I can get to why Justice Clarence Thomas is the greatest non-judge Justice of them all. So please bear with the preface to that argument.

First, and obviously, the Justices cannot decide cases by taking bribes nor can they decide cases involving family members. More importantly, they can't just issue opinions and edicts whenever theu feel like it. Lawyers have to bring cases to the Justices, and those cases must be consistent with the Court's jurisdiction as set forth in Article III of the Constitution.

Additionally, the Court's discretion to decide cases as an initial matter is extremely narrow. Under Article III, the Justices have original jurisdiction only over cases involving ambassadors, ministers, and counsels, or where a state (not a state officer) is a party. The rule laid down in Marbury v. Madison that the Court cannot hear any case under its original jurisdiction that does not fall into one those narrow categories, has, to the best of my knowledge, never been violated.

I also think that if you asked the Justices, they would probably concede that they are limited in their decision making by what the people, the elected branches, and the states will accept. After all, as Alexander Hamilton famously said in Federalist No. 78, the Court has neither the "purse" nor the "sword," and must rely on the people's confidence to stay in power. These are real limits on the Justices' power and influence.

So why do I argue that that the Court is not a court and the Justices are not judges? There is one more limit that the Justices themselves and most Court watchers would say constrains the Court's power and distinguishes the Justices from legislators and other law makers. The Justices do not make and are not supposed to make all-things-considered decisions. They must apply prior law in good faith even if that prior law is imprecise or inconsistent and gives the Justices substantial discretion.

Thus, to take a few famous examples, the Justices were not supposed to decide whether term limits were good or bad, whether prohibitions on abortion were right or wrong, or whether we could move towards racial equality better through affirmative action programs or simply by stopping using race altogether as a factor in governmental decision making. Instead, the Court is supposed to decide whether the text and history of the Constitution, or prior Supreme Court cases (precedent) provide answers to those questions. It is this alleged limit that I think is no limit at all on Supreme Court Justices, and why I think the Court is not a court.

If the Justices announced tomorrow that they were going to make all-things-considered decisions based on their personal value judgments as well as their views on morality, politics, religion, etc., and that they would only use text, history, and precedent as non-binding factors among many others on their way to all-things-considered decisions, I am pretty sure we would all agree that such an announcement would make the "Court" an ultimate veto council not a court of law.

Let's start with text and history. As I've argued many times before, a good faith evaluation of text and history by the best meaning judges will almost never yield persuasive answers in cases that get to the Supreme Court, and even when they do in some people's opinions, there will be other smart people arguing the other side with equal vigor. If you do not believe me on this point, Professor David Strauss of the University of Chicago, who perhaps unlike myself is not considered by most people to be a severe Supreme Court critic, has made a career of arguing that neither text nor history drives Supreme Court decision making. Instead, the Justices care mostly about their own case law. His Harvard Law Review Foreword on this point, as well as my addendum to his Foreword, contain the evidence and data to support this argument (I address Thomas' alleged commitment to text and history below).

Many people also argue that the Court is constrained by stare decisis--its own prior cases. But this is inconsistent with the Court's jurisprudence, which shows that in virtually every area of litigated constitutional law the Court has changed its mind on society-defining issues. Of course, the Justices sometimes say they are following prior case law they disagree with based only on stare decisis, but the bottom line is that, unlike all other federal court judges, the Justices are not bound by their prior cases, and they can and do decide to overturn them or limit them on a regular basis.

So my book "Supreme Myths" argued that that prior law (text, history, and precedent) does not play a meaningful enough role in the Justices' deliberations about how to decide constitutional law cases to distinguish them from all-things-considered decision makers (albeit with the limitations described at the beginning of this piece).

Now let's turn to the most obvious and glaring non-judge Justice of them all--Justice Thomas.

First, Justice Thomas repeatedly in his judicial opinions and in his off the bench statements argues that the only proper tools of constitutional interpretation are the Constitution's text and the history behind that text. For example, last Thursday the Court castigated the 9th Circuit Court of Appeals for adding an issue of first amendment overbreadth to a case when the issue had not been raised by the parties. Thomas concurred in reversing the 9th Circuit agreeing that the issue was not properly before the Court, but then he wrote an opinion suggesting that the Court revisit its prior cases allowing overbreadth challenges. As Mike has already noted, Justice Thomas made highly dubious substantive arguments for discarding overbreadth, but I'd like to focus on what Justice Thomas said about his jurisprudential method. He wrote:
This Court’s overbreadth jurisprudence is untethered from the text and history of the First Amendment....The doctrine is driven by a judicial determination of what serves the public good. But there is 'no evidence [from the founding] indicat[ing] that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare....' This makes sense given that the Founders viewed value judgments and policy considerations to be the work of legislatures, not unelected judges.
Despite Thomas' many homages to text and history just like this one, both roads almost always lead him to reach results consistent with the priorities of the Republican Party, which is quite a coincidence. I have previously on this blog made this case so I will just quote here what I've said before:

Justice Thomas' America is one where Americans possess strong rights to guns but no rights to abortion; where no government, city, state or federal may take racial criteria into account where trying to address our racist past and current racial problems; where gays and lesbians are strangers to equal rights under the law; where Congress is prohibited from addressing serious economic issues that plague our country; where the protections for criminal defendants set forth in the 4th, 5th, 6th, and 8th Amendments to our Constitution barely exist; where corporations may spend as much money on elections as they want because money is speech and corporations are people; where the President of the United States may fight terrorism without any constitutional check from the other two branches of government; where state and local governments are practically prohibited from regulating private property for the common good; where states may place term limits on members of Congress; and where the rights of majority religions constitute constitutional trump cards authorizing discrimination against minorities and traditionally disadvantaged groups.
It is just not remotely plausible that text and history rather than personal value judgments drive Justice Thomas' decisions in these cases. For example, there is nothing in the text or history of the Constitution supporting Thomas' color-blindness principle prohibiting all affirmative action programs. That principle may support the common good or general welfare, but it is not in the Constitution's text nor supported by its history. Similarly, his desire to give the President a "blank check," in the words of Justice O'Connor, to fight the war on terror may be right or wrong, but it is at great odds with the Constitution's text and history.

Since Justice Scalia's passing, Justice Thomas is the Justice most outspoken about the idea that the Court's deliberations should be limited to text and history; yet he violates that principle as often or maybe even more often than any other Justice. Speaking of Justice Scalia, let's turn to the other decision-making factor that judges are supposed to take seriously, precedent. Scalia did (a little). Thomas, not at all.

No Justice today, or perhaps ever, has come close to wanting to tear as many massive holes through Supreme Court precedent as Justice Thomas. According to Professor Stephen Wasby, Thomas has written more than 250 opinions suggesting the Court should overturn prior cases. And Tom Goldstein, founder of SCOTUSBlog, has said that Thomas does not "give stare decisis any weight."

Even as a relatively junior Justice, all the way back in 1995, Thomas suggested reverting to a pre-New Deal understanding of the commerce clause, which would require the reversal of a gaggle of cases. Since then, he has advocated the possible overturning of some of the Court's most storied precedents, such as New York Times v. Sullivan (plaintiffs must show actual malice against public officials in defamation suits) and Gideon v. Wainwright (indigent defendants are entitled to state paid counsel in felony cases). Of course, he also wants to return abortion to the states by overruling Roe and Casey, and he'd reverse a number of the Court's affirmative action cases and prohibit any and all racial preferences by every unit of government--federal, state, and local.

Don't get me wrong. I am all for the transparency that comes with Justice Thomas' openness about the lack of constraint precedent provides him when deciding cases. But let's back up--his alleged reliance on text and history leads inexorably to results that are almost always aligned with the interests of the Republican Party, and quite obviously, his own values. So text and history don't cabin his discretion (nor could they). He is also more than willing to casually throw out prior case law for pretty much any and all reasons. So what is the difference between Justice Clarence Thomas and a public official (albeit one with limited jurisdiction) deciding cases based on personal values and politics in an all-things-considered manner? The answer is that there isn't any difference at all.

Like I said at the top, Justice Thomas is the greatest non-judge Justice of them all, even if he is one of the most honest.

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