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In the US Supreme Court, where nine judges often disagree but try to melt their opinions in majority decisions, a judge stands out.
Clarence Thomas, the oldest member of the current court – and his only African-American – has opinions that may only be described as unique.
Some observers, however, use other terms: idiosyncratic, eccentric, provocative, thoughtful and, yes, crazy.
"He went through all kinds of different ideologies in his life," observes Akhil Amar, a law professor at Yale. "At the law school, he was of the Black Panther type, a black power extremist of a certain type.He now defines the right wing of the US Supreme Court."
As he has done in the past, Thomas chose this term to chart a trajectory that is sometimes breathtaking compared to his colleagues. Although he wrote eight majority opinions for the Court this term, it was his 18 dissenting and concurring opinions that raised eyebrows.
An array of extraordinary opinions
In the most eye-catching separate decisions of Thomas this term, he has only rarely attracted the vote of only one other judge. Here is a selection:
- He dissented when the court invalidated the conviction of a black man tried six times for the same crime by the same prosecutor and composed of all white or almost white jurors.
- He again wrote that the Constitutional prohibition of a religion by the government did not apply to states – in other words, states are free to prefer or prefer Approve one religion over another.
- He has twice called on the court to reconsider abortion decisions, in one case there has even been talk of linking birth control and family planning to the eugenics movement of which there is a century.
- For the first time, he called for the overthrow Gideon c. Wainwright, the landmark 1963 decision requiring defendants too poor to pay for a lawyer to get a lawyer paid by the government.
- In another first, he called for the cancellation of the historic 1964 decision on freedom of the press New York Times c. Sullivan, by setting standards to make it more difficult for public figures to sue for defamation without proof of the publication of falsehoods.
The Trump-Thomas duet
Thomas 's new objection to a landmark decision on defamation that has been reaffirmed countless times has not been joined by any other judge, but it coincides with President Trump' s views.
As a private citizen, Trump has repeatedly and unsuccessfully tried to sue his detractors in the media. And he did not hide his fury at the state's defamation laws.
At a campaign rally in 2016, Trump attacked the New York Times and the Washington Post, stating, "I am going to open our defamation laws, so when they write deliberately negative, horrible and fake articles, we can sue them and earn a lot of money.
This is a pledge that he has frequently repeated since then.
Trump was particularly attentive to Judge Thomas and his wife Ginni, a conservative activist. The Thomas had dinner with the Trumps at the White House earlier this year; Shortly after, Ginni Thomas led an hour-long meeting between the president and a group of her conservative socialist militants.
Trump's relationship with Thomas may have prompted rumors of retirement, fueled by some conservatives, who apparently would have liked Thomas, 71, to retire so Trump could replace him with a younger member of the Conservative Party for decades yet.
If that were the plan, it would not work, as Thomas made it clear during an appearance at Pepperdine University, to whom he was asked what he might say when he from his retirement party in 20 years.
"But I'm not retiring," he told the interviewer, who asked the question, "Not in 20 years?"
"No," Thomas replied with a laugh.
"Not in 30 years?" the interviewer persisted.
"No," Thomas added emphatically.
Now, no one really thinks that Thomas will still be in the Supreme Court when he turns 101, but in that appearance, he clearly rejected the idea of retiring so soon.
Theories of Black Nationalism to Originalism
In each of his 28 years at the highest court in the country, Thomas has seen critics and supporters formulate different theories about his case law.
Corey Robin, Professor at Brooklyn College, author of the forthcoming book, Clarence Thomas's Enigmaargues that Thomas's dominant legal philosophy stems from his vision of "black nationalist".
"From what I understand, Thomas thinks that he thinks that the US state, in particular, is steeped in race and racial awareness," Robin said. "He thinks it's kind of a ridiculous race to try to change that."
In Robin's opinion, Thomas's dissent in the jury discrimination case of this term fits perfectly. The solution for white prosecutors to try to exclude black jurors because of their race is to allow the defense attorney to exclude white jurors because of their race as well.
Ralph Rossum, professor at Claremont McKenna College and author of Understand Clarence Thomas. Rossum said that Thomas disdained previous Supreme Court decisions, as they were moving away from the original Constitution more and more.
"If you have a finely worked piece of furniture and apply it layer by layer, soon all the details will disappear under the layers of paint," said Rossum, "and what Thomas wants to do, is bare wood, to the original text "of the Constitution.
But even the man who made popular originalism, the late judge Antonin Scalia, did not have such a purist view. Unlike Thomas, he made believe in precedent. As he says so well: "I am an originalist, but I'm not crazy."
The precedents of the Supreme Court are the foundation of the law and an orderly society, said Baltimore University Law Professor Garrett Epps. He sees the vision of Thomas's precedent as arrogant.
As an example, he quotes a concordant opinion of 1995 in which Thomas described "extreme" the opinion of James Madison on the separation of the church and the church. State and declared that "anyway, the opinion of one man does not establish the original meaning of the First." Amendment "clauses on religion.
"Wait a minute," said Epps, his voice rising, "you just call James Madison, the father of the Bill of Rights … you just call him an extremist, especially in the field of freedom of religion, is the most identified with. "
Epps argues that if you read Thomas's case law, the point of view of one man counts – his own. Thomas "only knows the original meaning of these provisions," said Epps, "and even Madison, who wrote them, can be ignored."
Epps added, "Now it takes a level of confidence or megalomania that I find truly breathtaking."
The measure of success
It is important, however, not to dismiss Thomas's views. Yale's Amar acknowledges that Thomas has not written much of the majority's highly visible opinions for the court, but that it may not be what matters most for the moment with a newly conservative court majority.
"If you think the success of justice depends on the number of his majority opinions, well, Thomas ranks a little lower," Amar said. "But if instead the game is marked by the number of new ideas that someone takes in the conversation and ends up wagering, well, then Thomas is well placed in the # 39, hierarchical order. "
Thomas, for example, did not write the court's landmark ruling in 2008 declaring for the first time that the right to the second amendment to carry arms includes an individual's right to own a firearm at home to defend oneself . Scalia wrote this decision, but the first judge to have proposed this idea was Thomas, in a concurring opinion 11 years earlier.
Amar nonetheless makes a distinction between the Firearms Rights Decision and the other decisions criticized by Thomas. The right to a fair trial guaranteed by the Constitution is so "fundamental", said Amara. He has been so well received by the courts and specialists that he has deemed "unimaginable" that the Supreme Court repudiates either Gideon c. WainwrightThe right of counsel to a lawyer or line of decisions prohibiting racial discrimination in jury selection.
Similarly, he believes it is "unimaginable" for the Supreme Court to repudiate its historic libel decision or to rethink its religious doctrine to allow state governments to prefer one religion to another.
But: "The only area where Judge Thomas could very well have five votes is abortion," said Amar, adding, "It's the proverbial elephant of the hall."
But if the new conservative majority of the Supreme Court begins to rethink the long-established major precedents in other areas, Thomas will pave the way.