THEOCRACY IN ACTION
Jurist Embraces Image as a Hard-Line Holdout
http://faculty.smu.edu/jkobylka/SCtItems/ThomasWP04II.htm
[EXCERPT]
By Michael A. Fletcher and Kevin Merida
Washington Post Staff Writers
Monday, October 11, 2004; Page A01
Second of two articles
Shortly after delivering a sober commencement address at Ave Maria School
of Law in Ann Arbor, Mich., Clarence Thomas chatted and posed for pictures
with some of the 56 graduates. On an overcast day in May, they stood in
front of a newly unveiled statue of Sir Thomas More, the Catholic martyr
whom Thomas has called an inspiration.
Before long, someone asked about Brown v. Board of Education, the
monumental 1954 Supreme Court decision to end legal segregation that was
being widely hailed throughout the nation on the occasion of its 50th
anniversary. Thomas, the only black justice on the Supreme Court, launched
into an impromptu lecture. It was not about Brown, but about Plessy v.
Ferguson, the 1896 case that produced the infamous separate-but-equal
doctrine.
Thomas singled out the lonely dissent of John Marshall Harlan, the only
justice to vote against the decision. "In the eye of the Constitution, in
the eye of the law, there is in this country no superior, dominant ruling
class of citizens," Harlan wrote. "There is no caste here. Our constitution
is colorblind."
Thomas said of Harlan's opinion: "It was not reported. There were no
contemporaneous articles. No law review articles. Just one guy." One guy,
he added, whose view eventually was embraced by a nation.
Thomas's take on Plessy says much about how he sees his own role on the
nation's highest court: a lonely holdout for principle. Since his elevation
to the Supreme Court 13 years ago, Thomas has methodically built a record
notable for its unwavering conservatism and aggressive challenges to
long-standing legal precedents in areas from church-state separation to
voting and prisoners' rights.
Aligning himself with the court's conservative majority, Thomas has
supported decisions that scaled back affirmative action, allowed use of
some public money to send students to parochial schools and restricted the
creation of election districts intended to elevate minorities. His
rethinking of legal doctrine extends to more obscure areas such as the
Constitution's commerce clause, which is the basis for a wide range of
federal workplace and environmental statutes. Thomas has said the court
should consider limiting the clause's reach to its original understanding,
which was to allow federal regulation of the movement of goods between
states.
As Thomas sees it, a majority of his colleagues are too often bent on
interpreting the laws according to the currents of modern times. Rather
than tinkering, Thomas would end affirmative action, allow widespread use
of school vouchers and eliminate "majority-minority" election districts in
almost every circumstance.
"He doesn't view his job the way that Justice [Sandra Day] O'Connor does,"
said Scott D. Gerber, a law professor at Ohio Northern University who
closely follows Thomas's work on the court. "I think he is more concerned
about being committed to his principles than in trying to reach some
consensus with his colleagues."
Thomas's jurisprudence has made him the toast of conservative activists,
who laud his firm legal stands, and the nemesis of liberal activists, who
view him as vindictive and narrow in his reading of the law. The irony is
that Thomas is the author of few majority opinions in constitutionally
significant cases. His unbending approach makes it difficult to assign him
opinions in closely contested cases for fear that he might not be able to
hold a majority, and his junior status among the court's conservatives also
means he might get fewer opportunities to write for the majority in
important cases.
Cases decided by a 5 to 4 vote account for 14 percent of Thomas's majority
opinions, the second lowest percentage rate among current justices behind
liberal Ruth Bader Ginsburg, according to a database of Supreme Court votes
maintained by Michigan State University. By contrast, the highest
percentage rate -- 31 -- belongs to Justice Anthony M. Kennedy, one of the
court's swing voters.
Thomas "has firm views that [the court's swing voters] would be
uncomfortable with," said Mark V. Tushnet, a Georgetown University law
professor. "If you give him a closely contested major case, he may not end
up in the majority."
The court's fragile balance was reflected in the 2000 case involving
whether governments could lend computers and other equipment to religious
schools without violating the church-state separation. Thomas, writing for
the court, said flatly that such aid does not advance religion. That stance
caused him to lose two justices, O'Connor and Stephen G. Breyer, who voted
with the court's 6 to 3 majority but refused to join Thomas's opinion. They
wrote that Thomas's opinion "foreshadows the approval of direct monetary
subsidies to religious organizations," a position they oppose.
Thomas's entrenchment makes him more a symbol of the ideological divide in
American jurisprudence than a persuasive force on the bench.
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Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members]
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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