The Tea Party’s Justice


Clarence Thomas has emerged as the intellectual leader of the Roberts Court, writes Jeffrey Toobin in the latest New Yorker.

Thomas has been the Court’s most conservative member since becoming an associate justice twenty years ago. He has long wanted to overturn New Deal and Great Society reforms. Unlike many conservatives, he seems to share Ronald Reagan’s admiration for Thomas Paine’s sentiment: we have it in our power to begin the world anew.

The last five years of high court rulings have suggested that sentiment might be catching on with his conservative Court colleagues.The Court has shifted to the Right since Samuel Alito replaced Sandra Day O’Conner on the bench. O’Conner, seen as the influential vote during the Rehnquist years, had disappointed conservatives during her tenure. Alito, a reliable conservative, has not done so.

The Court now has four staunch conservatives: Thomas, Alito, John Roberts and Antonin Scalia. Anthony Kennedy has replaced O’Conner as the swing vote on the Court. Sonia Sotomayor, Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg make up the liberal wing.

The conservative shift has affirmed the individual right to keep and bear arms (District of Columbia v. Heller) and expanded free speech rights to corporations (Citizens United v Federal Election Commission).

During the upcoming term, the Court will decide if the Obama health care law (The Patient Protection and Affordable Care Act- often called Obamacare) complies with the commerce clause. This will potentially rein in federal power for the first time since the 1930s Court over-ruled parts of the New Deal. A decision will likely come down next June, during the height of the presidential campaign.

Toobin argues that if the health care law is overturned, it will be a complete vindication of Thomas and his judicial philosophy. Thomas is an originalist. He believes the Constitution should be interpreted the way it was originally written in the eighteenth century.

This view goes against the Court’s consensus since the Warren years. For the last several decades, liberal jurists have argued that the Constitution is a dated document and must be amended for the times we live in. Justice Stephen Breyer is a leading advocate of this view today. He laid out his support for a “living constitution” in his book Active Liberty.

Thomas’s originalism goes against the views of many conservatives as well. Traditionally conservatives value stare decisis, or the precedent laid out in the common law tradition. But Thomas is no conservative. He’s a revolutionary.

Stare decisis is irrevelent in Thomas’s opinion. “If it (a decision) is wrong, it’s wrong,” Thomas recently told a group of law students. These wrong decisions must be addressed and amended.

Thomas’s jurisprudence in the 1990s paved the way for the Heller and Citizens United decisions. In this way, Toobin contends, he is like another consequential jurist: Hugo Black.

Black joined the Court in 1937, the year Franklin Roosevelt tried to pack the Court because conservative justices had struck down the Agricultural Adjustment Act as well as New York’s minimum wage law.  His views became widely held over his tenure (he served until 1971) and his jurisprudence affirmed the New Deal social compact.

No one is saying Thomas’s originalism will become widely held. Even Antonin Scalia (his most likeminded Court colleague) has questioned his assault on stare decisis. “I wouldn’t” shun precedent entirely, Scalia noted in 2004. But the Roberts Court have embraced Thomas’s views on guns and free speech, which seemed radical just ten years ago.

The Supreme Court had not addressed the Second Amendment since 1939 before  hearing Heller. The consensus view was that the right to keep and bear arms was a collective, rather than an personal right. This view was prevalent because of the wording of the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. “

Thomas thought the Second Amendment guaranteed individual gun rights. He addressed the issue in 1997, on a case involving the Brady Bill. Bill Clinton passed this gun-control legislation in 1993. A provision of the bill required state and local officials to conduct a background check on gun buyers.

This provision of the bill was challenged in Printz v United States . The Court ruled (5-4) that the background checks were unconstitutional and a violation of states’ rights. This argument centered on the Tenth Amendment, which says that the federal government has enumerated (limited) powers and additional power was reserved to the states and the people.

In a concurring opinion, Thomas suggested that the Brady Bill might also violate the Second Amendment (in addition to the Tenth) because it violated the “personal” rights of gun owners.

This attracted two lawyers (Steve Simpson and Clark Neily) who work for the libertarian non-profit law firm, Institute for Justice. Neily and Simpson wanted to find a test case for challenging the Second Amendment’s consensus view. They approached Robert Levy, a constitutional scholar at Washington’s libertarian think tank, the CATO Institute.

Levy agreed to use CATO’s resources to find a test case. They ultimately selected Dick Heller, a Washington,D.C. special police officer who had been denied a gun permit because of the District’s strict gun-control laws.

The Court affirmed the personal right to keep and bear arms and in District of Columbia v Heller. The 5-4 ruling struck down the D.C. gun law, which made it a crime to carry an unregistered firearm but prohibited the registration of handguns.

The 2008 decision put Washington on alert. The capital was in for another surprise, a year later.

Campaign finance reform had been widely celebrated when The Bipartisan Campaign Reform Act of 2002 (popularly called McCain-Feingold after the bill’s sponsors) passed. The legislation banned “soft money” (corporate contributions) from political campaigns and put a “hard-cap” on individual campaign contributions.

Conservatives thought this limited free speech. George Will, the syndicated columnist, has called campaign finance reform “the most dangerous assault on free speech since the Alien and Sedition Acts.”

The plaintiffs in Citizens United sought to reverse campaign finance reform. Citizens United (a non-profit corporation) had put out a documentary critical of Hillary Clinton during the 2008 presidential campaign. It also produced television ads for the documentary. Anticipating that their action violated McCain-Feingold, it brought a lawsuit claiming that the campaign-finance reform law was a violation of the First Amendment.

Thomas had long supported the free speech of corporations. Court watchers thought he would vote for Citizens United.

They pointed to his ruling in McIntyre v Ohio Election Commission. The case revolved around Margaret McIntyre, a Ohio woman who handed out unsigned leaflets at a local school board meeting. McIntyre opposed a school tax referendum and wanted her voice heard.Ohio election laws required her to attach her name to any material she distributed. The state fined McIntyre $100 for violating the rule.

The case came to the Supreme Court in 1995, Thomas’s fourth year on the bench. The Court ruled in favor of McIntyre and said the Ohio law violated her free speech rights.

In a concurring opinion, Thomas wrote about the need to protect anonymous free speech. He cited the Founders and pointed out Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers using pseudonyms.Thomas’s ruling provided a history lesson Toobin calls, “an originalist tour de force.”

McIntyre set the stage for Citizens United, the 2010 ruling which sent shockwaves throughout Washington.

The 2010 Citizens United decision has become the most controversial decision of the Roberts Court. Granting free speech to corporations looked like a way for big business to buy elections. President Barack Obama famously scolded the decision in that year’s State of the Union address.

Since Thomas has altered the Court’s rulings on free speech and gun rights, can he change the Court’s interpretation of the commerce clause as well? That question is at the heart of Toobin’s piece.

During the Obamacare debates, liberals thought it was beyond the pale to consider if health care reform violated the commerce clause. Certainly health care involved interstate commerce and Congress had the right to find a legislative solution, they said. The final legislation included an individual mandate that forces citizens to buy health insurance or pay a fine.

Liberals had every reason to believe health care reform could withstand legal challenge. The Court has largely ignored the commerce clause over the last century. Federal power expanded exponentially following the New Deal and Great Society reforms. Conservatives mounted a challenge against the commerce clause in United States v Lopez. I detailed it here. That case involved guns in school districts. An important matter, but trivial when compared to legislation regulating a sixth of the U.S. economy.

Virginia Attorney General Ken Cuccinelli filed a lawsuit against the health care reform bill the day President Obama signed it into law. Several other lawsuits were filed against the legislation as well.

This spring Judge Roger Vinson of the Pensacola Federal District Court struck down the health care bill. Vinson relied on the Lopez decision and said the commerce clause did not permit Congress to pass an individual mandate. Since the mandate was central to the bill at large, Vinson overturned the entire legislation.

Vinson’s decision said the bill allowed government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.” Such blunt language sounded like a Tea Party critique of the bill.

Earlier this month, the 11th Circuit Court of Appeals also struck down the individual mandate, but said other parts of the bill were constitutional. This complicates things. If the individual mandate is removed, how does the bill work?

No doubt the Supreme Court will clarify things when it rules on the case next summer.

Striking down the health care law would be the biggest check on federal power since the Court ruled against the New Deal in the 1930s. It will become the defining case of the Roberts Court.

It will check the expansion of the modern progressive state, which has grown dramatically since Franklin Roosevelt came to Washington in 1933. It will re-assert that ours is a limited government, constrained by enumerated powers.  And if validate the jurisprudence of Clarence Thomas.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: