Friday, August 07, 2020

Arrogant Nuttiness: Constitutional Law in a Justice Thomas World

By Eric Segall

Much has been written about Justice Clarence Thomas' oft espoused view that he doesn't believe in following prior cases if they were obviously decided incorrectly. Whereas all the other Justices at least pay lip service to ideas of reliance, predictability, and other rule of law type values inherent in the nature of stare decisis, Thomas rejects those factors. In his own words (and please forgive the long but necessary quote):
In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions...over the text of the Constitution and other duly enacted federal law. It is always 'tempting for judges to confuse our own preferences with the requirements of the law,' Obergefell v. Hodges (Roberts, C. J., dissenting), and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises “force” and “will,” two attributes the People did not give it. The Federalist No. 78....We should restore our stare decisis jurisprudence to ensure that we exercise 'mer[e] judgment,' ibid., which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.
There are so many troubling aspects of this paragraph that it is hard to know where to begin, but this piece is as much about Thomas's substantive vision of the Constitution as his uniquely crazy views about prior cases and the rule of law. Therefore, before diving into the major cases Justice Thomas would overturn, it would be beyond human nature for me not to mention that virtually no constitutional cases the Justices decide to hear can be decided by the "text of the Constitution."
The first, second, fourth. fifth, sixth, eighth, eleventh, and fourteenth amendments all contain hopelessly vague and oft-litigated phrases that provide little or no guidance to the Justices. What is an abridgment of speech, an establishment of religion, an unreasonable search or seizure, a cruel and unusual punishment, and a violation of the equal protection of the laws, among numerous other imprecise constitutional instructions and limits on government, cannot be decided on the basis of text (either its original meaning or its current meaning). This point seems almost too obvious to have to state and partly explains why the Court's cases almost always build on prior Supreme Court decisions constructing new rules rather than the interpretations of the text itself. Professor David Strauss, among many others, has demonstrated that case law, not text, drives Supreme Court decisions, and absent strong deference to other branches of government, of course it has to be that way.
But let's see where Thomas's alleged interpretations of the text take us. As many people have observed, Thomas's complete rejection of limited racial preferences in university admissions and government contracts is based on his view that the Constitution must be completely color-blind -- a phrase and a rule that have no basis in the text of the 14th Amendment or its history. Thomas would reverse numerous cases allowing such preferences, such as Grutter v. Bollinger and Fisher v. Texas. More importantly, Thomas would dramatically change the way public universities across the country go about their business based on ... well, his construction of a text which says nothing at all about race. 
The Supreme Court has decided dozens of cases since 1946 applying the first amendment's establishment clause to the states. These issues include what assistance states can provide to religious schools, which religious symbols may be placed on government property, and whether prayers are allowed at state legislatures, among many other questions. Justice Thomas would reverse every case finding an establishment clause violation by the states on the basis that, unlike almost all of the rest of the Bill of the Rights, the establishment clause does not apply to the states. And unlike his view that the second amendment applies to the states via the privileges or immunities clause (not the due process clause as the Court has held), he would find the establishment clause simply doesn't apply to the states at all, full stop. The implication of this view is that Georgia could declare itself a Christian State and use taxpayer money to support the salaries of priests who operate sectarian schools. 
Thomas would, of course, overturn Roe and Casey and return the issue of abortion completely to legislators. 
In 2000, the Court considered whether to overturn the landmark decision Miranda v. Arizona, requiring police officers to read people who are arrested their rights before the suspects are questioned. The Court voted 7-2 to uphold the decision with that pro-defendant, bleeding heart liberal Chief Justice William Rehnquist writing the decision. Thomas dissented along with Antonin Scalia, and would have reversed one the Court's most signature cases.
One of my favorite Justice Thomas nuggets is his desire to overturn another series of cases wrestling with the free speech rights of minors both inside and outside of schools. These controversies raise difficult issues but not for Thomas, who would hold that minors, even high school students, have no free speech rights at all, separate from their parents, because of a highly dubious interpretation of the common law circa 1788. Under this view, a public high school could require students to say or not say all kinds of political and partisan things having no pedagogical purpose unless their parents objected. 
Justice Thomas's [in]famous view of Congress' power under the commerce clause is well known. He would reverse the many important cases where the Court affirmed Congress's power to regulate local commercial activities that affect commerce among the states and would effectively reduce the commerce power to the regulation of selling, bartering, and transporting goods for sale across state lines. As is the case with many of his views, he is the only Justice who has taken such a position, and if he could convince four other Justices to join him, Congress's ability to deal with economic issues that affect the economy as a whole would be severely limited.
Thomas has also said the Court should reconsider New York Times v. Sullivan, another landmark Supreme Court decision. It held that public officials cannot sue for libel or slander absent actual malice. Obviously, the overturning of this rule would result in substantial litigation among and between the media and political candidates and among and between the candidates themselves.
The Supreme Court and lower courts have wrestled over the years with how the first amendment applies to prison inmates in terms of their access to books, newspapers, libraries, etc. Justice Thomas would not have to engage in such deliberations because he thinks inmates have no free speech rights at all. None. He would filter such cases exclusively through the 8th Amendment's ban on cruel and unusual punishments, meaning inmates would always lose such cases.
Until the 1970's, the Court held that commercial speech received no first amendment protection. Now the Court applies a rather murky balancing test to this kind of speech, which in theory is less protective than constitutional limits on regulations of other kinds of speech. Thomas would apply strict scrutiny to commercial speech regulations, potentially invalidating a huge swath of laws that are now considered by judges to be constitutional.
Justice Thomas has either voted to reverse or would reverse numerous other constitutional law cases, but sorting through all of them would require a law review length treatment. The gist of Thomas's jurisprudence as a whole is that religion always wins, states almost always win--apart from campaign finance reform laws, commercial speech laws, and affirmative action programs--the regulatory state almost always loses, Congress has little power to regulate the national economy, prisoners always lose, minors always lose, and traditionally disadvantaged minorities almost always lose. One might recognize all of this as jurisprudence based more the Tea Party's platform than the text of the Constitution, which is agnostic as to most of these cases and disputes.
Even if one were to agree in the first instance with Thomas on some or all of his unique views, a thoughtful person would then ask how much chaos and confusion would occur with the overruling of many of the Court's most impactful cases. But not Justice Clarence Thomas. Chaos and confusion be damned; the only important question is whether the old cases were obviously incorrect based on the Constitution's text. So far as I am aware, no other Justice in history holds such a view of stare decsis, and for good reason, The rule of law requires some degree of stability and predictability so that people can order their affairs with a reasonable reliance on judicial decisions, especially the most important ones. To suggest that the Justices should not take those factors into account when considering whether to overturn prior cases is the height of judicial arrogance. 
Actually it is more than that, but you don't have to take my word for it. When the late Antonin Scalia was once asked to compare himself to Justice Thomas when it came to fitting originalism into the Court's non-originalist precedents, Scalia said, "look I'm an originalist and a textualist, not a nut."

2 comments:

Joe said...

Justice Thomas' clerks are prime choices for future endeavors, including appointments to the lower courts. And, perhaps, the Supreme Court at some point. Clerks are not always in agreement with their judges, but there is often an ideological match there. Also, from what I can tell, Thomas can be a good mentor so his values can for that reason to be a guide to the clerks and others. Thomas is not just an outlier here.

Prof. Segall has done a lot of work to back-up negative labels here. A general concern here is humility. Judges often have issues there, but an unrestrained version of judging, including regarding precedent, is particularly troubling. I think Gorsuch has some tendencies there. He is a bit too sure of himself. Kavanaugh is not quite as blatant there and at least by tone he so far is more restrained. I use those two to show that even nominees of Trump are not all of a piece here.

(For instance, from what I can tell, the person who replaced Segall's friend Judge Posner is much less troubling than some other Trump picks.)

Fred Raymond said...

Not that it tries to justify his views, but I found "The Enigma of Clarence Thomas" book to make some headway in explaining them.