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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Thomas on Precedent
October 08, 2007 11:05 AM
Clarence Thomas is blunt when asked how he is “similar” to fellow conservative Antonin Scalia. “Oh no, no,” he says. “How I ‘followed’ Justice Scalia.”
It was the storyline when Thomas first joined the Court back in 1991. Critics and more than a few journalists immediately portrayed him as a “puppet” of brilliant white conservative Scalia. Thomas reflexively did “Scalia’s bidding,” they said, without a thought of his own. Scalia was the “mentor” who pulled the strings.
The storyline is false—and was from his very first week on the Court--but Thomas says that point should be “something that goes without saying.” The assumption he followed Scalia is bigoted, he said, and driven by racial stereotypes. “You know, the black guy is supposed to follow somebody white,” he says.
“There’s no need to tip-toe around that,” Thomas says. “The story line was, well, I couldn’t be doing this myself, he must be doing it for me because I’m black.”
“Again, I go back to my point. Who were the real bigots?” he asks. “It’s obvious.”
That exchange, during a recent interview in his chambers at the Court, triggered a wide-ranging discussion about Thomas’ views on the law, the justices he admires and why he insists that the Constitution must be interpreted as “colorblind.” He talked about why he believes a judge must always put aside his personal views—even when his heart says otherwise. He spoke at length about Justice Harlan’s dissent in Plessy v. Ferguson, the infamous case that upheld segregation, and how he sees that dissent as an inspiration—the very model of judging.
He has a lot to say, and I’m going to spend this week writing about it.
Let’s start first with Scalia. I think we can all agree (as Harry Blackmun’s papers make clear) Thomas doesn’t “follow” anyone—as some of my colleagues in the press have been pointing out for years, Tony Mauro being among the first.
Thomas, to be sure, admires Scalia. In his book, Thomas says he told the Bush White House “Scalia,” when lawyers asked him, as a prospective nominee, the standard question: “Which Justice do you most admire?” (Sam Alito, when asked that question, said “Rehnquist.”) Thomas told me he’d been impressed by Scalia’s opinion in Morrison v. Olson, which the Court had decided when he at EEOC. It had divided the Court 7-1, and Scalia’s dissent is a classic exposition on separation of powers.
“In the Olson case, he had been the lone voice that the independent counsel law actually violated the whole notion of separation of powers, and it turns out now—when the interest changed—that people agree with him. But I just thought it was fascinating,” Thomas said. “He was not going along with something simply because, at that time, it was fairly popular. He was going back to that document, going back to the history and the tradition of that document, and then explaining it in a very rational and well-written way.”
But Thomas parts ways with Scalia on significant issues—especially, as most of you know, on the issue of stare decisis, which is Latin for “let the decision stand.” That principle maintains stability in the law and acts as a restraint on judges. All justices say they believe in stare decisis—and they testify to that effect in their confirmation hearings--but all of them also are willing to set it aside when they think the Court got it wrong in the past.
Thomas and Scalia, for example, have voted to overturn Roe v. Wade because they don’t think a right to an abortion is in the Constitution. This past term, they also would have overturned other decisions, including a recent one that had upheld the landmark McCain-Feingold campaign finance reform law. But other conservatives—John Roberts and Sam Alito--instead took a more cautious approach and held the Court back.
Liberal justices walk away from the principle, too. In recent years they overturned cases, for example, that had allowed the death penalty for the mentally retarded and for juveniles. They also overturned a 1986 decision that allowed states to prosecute homosexuals for private, consensual sex. And they have indicated that some of the Court’s recent decisions will not have staying power—that they will overturn those cases the moment the Court’s membership changes.
But of all the justices, Thomas is the one most willing to rethink old cases. In Ken Foskett’s insightful book, Judging Thomas, Scalia said Thomas “doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, ‘let’s get it right.’"
Thomas says Scalia’s claim is an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution.
But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.
“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.
“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”
That willingness to “think it through” separates Thomas from Scalia in a number of cases.
“Maybe you can’t change it, but at least let’s make it coherent as to what happened. You can accept the precedent, but you should at least try to see what went on,” he says. “You go back to the document. You go back to the language of the Constitution, to the history, to the tradition. You go through it all, and then you compare that with the precedent.”
And at what point does a judge deviate from the precedent?
“That’s an individual decision on the part of judges. The judges to whom--or for whom--stare decisis applies most are the judges on the courts below us: the courts of appeals, the district courts, the magistrate judges, the bankruptcy judges, etc.
“Up here, this is the end of the line, and the only people who could revisit—in particular—constitutional cases are the members of this Court,” Thomas says. “In the statutory cases, Congress can revisit that. So you are less apt to change a precedent—because it can be corrected in the legislature, as opposed to this being the sole place that it can be changed.”
Thomas says he believes in stare decisis, especially in the statutory cases. If it’s a choice between precedent and what he considers a correct reading of the Constitution, though, he’s more willing to go to the Constitution. That’s not “radical,” he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error.
He points out that a rigid adherence to precedent would mean Plessy v. Ferguson still would be on the books. Plessy was established doctrine, 58 years old, when it was overturned in Brown v. Board of Education.
That’s not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.
In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say “no more.” He suggested as much in his concurring opinion in United States v. Lopez, when the Court in 1995 struck down part of the Gun-Free School Zones Act as exceeding Congress’ power under the Commerce Clause.
Although Thomas suggested the Court should reconsider its approach under the Commerce Clause—which he believes is inconsistent with the Constitution and is a relatively recent innovation—he also stressed that “this extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions.”
The analysis does suggest, he wrote in his concurrence in Lopez, “that we ought to temper our Commerce Clause jurisprudence.”
Thomas sees precedent as the engine--or, in a different analogy, the bedrock. When you build a house or a barn, you have to get to solid ground to lay the foundation. So you dig. If you hit water, you keep digging. If you hit mud, you keep digging. Thomas wouldn’t stop until he hit the firm footing of solid ground.
October 8, 2007 | Permalink | User Comments (34)
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David Nieporent, you write that I "apparently (a) do[]n't realize that the 14th amendment applies only to the states, not to Congress, and (b) do[]n't understand the difference between a remedial program and an arbitrary granting of racial spoils."
Well, you apparently have never heard of the 5th Amendment, and Bolling v Sharpe, which held that the Feds are subject to the same standards under 5-A as the States are under 14-A.
Secondly, I'd enjoy hearing you elucidate what difference you see between a "remedial program and an arbitrary granting of racial spoils." I'd see an affirmative action program like that used at the University of Michigan -- giving minority applicants a small point boost (undergrad) or wholistic consideration (law school) -- as a remedial program, given the centuries of discrimination and persecution in this country, and the continued vast disparity in socioeconomic conditions. I gather you'd call it an arbitrary granting of racial spoils. Why is that?
Posted by: Reader | Oct 9, 2007 9:58:21 AM
Daddy's response is typical. He complains about "idiot" right wingers who are just "educated enough" and who have nothing but talking points. Yet he somehow fails to make one logical point about the topic.
I think everyone here can plainly see who is the idiot spouting the talking points.
Posted by: Ohyeah | Oct 9, 2007 11:08:19 AM
It becomes somewhat difficult to respond when the posts by these republican prop up jobs say so much on their own merit. That which the network folks reject is also interesting set against what they leave out here on display. Justice Thomas and his anti- abortion ilk have but one passage of the Bible to contend with, the passage that says they are all nothing but blasphemers, Genesis 2:7, with its "breath of life" clause even gets the lawyers doing the doo wa diddy shimmy as they tapdance around this clear instruction for you and your law books.
Posted by: daddy | Oct 9, 2007 12:36:38 PM
Daddy,
Ummm....yeah.
What does Genesis 2:7 have to do with Clarence Thomas's judicial thinking?
Posted by: Ohyeah | Oct 9, 2007 1:07:40 PM
Another post, still no comments relative to the subject.
Genesis 2:7 says, " the LORD God formed the man from the dust of the ground and breathed into his nostrils the breath of life, and the man became a living being."
Since you have such a superior intellect, why don't you explain to us why this verse shows that Justice Thomas fails to think?
Posted by: Ohyeah | Oct 9, 2007 1:47:58 PM
What information is provided in Genesis 2:7 that proves that Justice Thomas fails to think?
Your country? So you're not an American? Now everything comes into focus.
Also, I would hardly think that one individual is proof of a national phenomenon. Your thought process is amazing.
Posted by: Ohyeah | Oct 9, 2007 5:51:31 PM
Well, you apparently have never heard of the 5th Amendment, and Bolling v Sharpe, which held that the Feds are subject to the same standards under 5-A as the States are under 14-A.
Of course I have. But I'm pretty sure that the Congress that passed the 14th amendment and the Freedman's Bureau Act hadn't heard of Bolling, so there's nothing at all contradictory about them passing both -- contrary to your claim.
I gather you'd call it an arbitrary granting of racial spoils. Why is that?
Well, because, inter alia, the affirmative action program at the University of Michigan -- which gave minority applicants a huge boost, not a small one -- didn't have any relationship to a remedy. There was no finding that the University of Michigan had discriminated, and nobody was required to show that he or she had suffered any discrimination in order to get the benefits of the program. All that was required was the right skin color.
The Freedman's Bureau Act, on the other hand, applied to people who had specifically been discriminated against (or, to be specific, enslaved).
It wasn't targeted at blacks qua blacks, like the University of Michigan's policy; it was targeted at blacks qua former slaves. Although modern 'disparate impact' laws deny this, there's a huge difference between a program which benefits people who happen to be black and a program that benefits people because they're black.
Posted by: David Nieporent | Oct 10, 2007 3:22:23 AM
David, the UM program gave minority applicants 20 points, and 100 were required to gain automatic admission. Legacies received 4 points, etc. I don't think that qualifies as a "huge boost."
I'm also pretty sure that the Freedmen's Bureau Act gave benefits to all blacks, not just freed slaves.
Posted by: Reader | Oct 10, 2007 10:11:03 PM
"I'm also pretty sure that the Freedmen's Bureau Act gave benefits to all blacks, not just freed slaves."
Well, it's name suggests the purpose was the give benefits to Freedmen and Refugees. It was called the Freedmen's Bureau, not the Blackman's Bureau. Freedmen, by definition, were once slaves. Besides, in the areas that the Bureau operated (which was overwhelmingly in the South) most blacks were former slaves.
And 20 points out of 100 isn't a huge advantage when one point can decide admission? Please! They only awarded a maximum of 12 points for a perfect SAT score. According to that moronic policy, having the correct skin color was 166% more important than scoring well on the SAT.
Your argument is unraveling quickly.
Oh, and you never answered the Genesis 2:7 question (or it got censored).
Posted by: Ohyeah | Oct 11, 2007 12:44:49 PM
A couple of comments:
Reader -- the 1864 Congress you keep referring to (in addition to creating the Freedman's Bureau) also segregated schools in the District of Columbia. Was this an endoresement of AA? (It might also demonstrate something about the footing on which Bolling v Sharpe and Brown v. Board are based)
C. Sadler -- perhaps you should actually go to law school before waxing knowledgable about the law. Black was a big proponent of incorporating the bill of rights to apply to the states - not the reverse (applying 14th to the feds). In addition, even though you botch it above, there were actually 2 cases: Hearts of Atlanta v US and Katzenbach v McClung. "Hearts" was about applying federal law to prevent discrimination BY PRIVATE ACTORS, rather than by a government actor (state or fed). To me, the case is total BS because the Court could have reached the same result with Sec. 5 of 14th Amend (which grants Congress the power to pass laws to enforce the purpose) in a much more honest fashion then doing what they did -- extending the commerce clause (again) to reach the hotel that was located near a highway. Katzenbach is the related case that applied to restaurants. For the same reason, I think it's BS.
Also, C. Sadler - w/r/t your final comment. Ignorant, tow-the-line, black liberals have no voice in mine either.
Posted by: Johnny | Oct 16, 2007 11:11:28 PM
Johnny -- perhaps what that 1860s Congress info indicates is that it's folly to be a slave to "original intent." It's often terrible, contradictory, and bizarre. Words like "cruel & unusual" and "equal protection" are words that demand interpretation afresh with each new generation. The Founders didn't intend to freeze us in time -- Jefferson certainly didn't anyway.
My point in referring to the 1860s Congress is simply that Thomas has no principles. He is a hack. His beloved methodology of Originalism goes out the window whenever it produces a result he politically dislikes. I'm not an Originalist, and I reach my results in these cases on other grounds of interpretation.
Posted by: Reader | Oct 17, 2007 11:54:21 AM
You would think that if you grew up to be one of the 20 most powerful people in the country with a life-time appointment you would quit playing the victim role. Mr Thomas is exactly what is wrong with this country and that is sad that his anger lashes out at "whitie" when he has achieved the pinnacle of the legal profession.
Posted by: Brad | Oct 28, 2007 4:47:45 AM
Steven Souter's comment about a Supreme Court that is "anti-victim, pro-criminal..." is very interesting. I wonder where he finds these criminals rights. It seems to me that they are the rights of citizens to protect us from an overreaching government. If I recall my political history, those are the rights that our forefathers fought & died to establish and to preserve. Those rights are the Conservative values that I believe in. The only rights we can give up our our rights... siding with the state over the rights of the individual is the Liberal position... at least it used to be when those words had meaning.
As to being 'anti-political speech,' if anyone really thinks that our current system of political contributions is speech and not bribery, then they understand nothing about the value of money or the nature of corruption. The fact that "America has the best government money can buy." is not a compliment to our "democracy" and it does not bode well for our future.
Posted by: Joey Tranchina | Mar 25, 2008 1:37:33 PM
Another interesting discussion of Affirmative Action. And what precisely were Clarence Thomas' qualifications to nominated to the highest court in America?
Posted by: Joey Tranchina | Mar 25, 2008 2:02:01 PM
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