[ad_1]
"This is one of the most important and significant decisions in the history of our country," said Theodore J. Boutrous of Gibson Dunn, First Amendment expert and Supreme Court lawyer.
The audacity of Thomas's opinion, which crept into a related affair, surprised Boutrous and others.
He even relaunched a whispering campaign among the progressives that the 70-year-old justice is preparing to retire. The idea that he had launched the opinion – that no justice has joined today – was a sort of final salvo as he was about to give up his seat to a younger candidate, Trump .
But Thomas's relatives saw something completely different.
For them, it was another opportunity for Thomas to plant seeds for the future in an area of law that he believes deserves more attention.
They say that opinion was less a last salvo than the creation of a new benchmark for justice that believes in the correction of what it considers to be past mistakes, even if it speaks alone.
And even though there may be no tattoos, tote bags, or other items that surround Ruth Bader Ginsburg, and maybe there is no voice in court to win the day , more than 25 years later, he has real army of former clerks and those whom he calls his "adopted clerks" who see the world and the law from a similar angle.
They find it hard to believe the rumors about retirement, especially now that Thomas sits with a recently consolidated conservative majority and, in some respects, takes a new step.
New York Times c. Sullivan
In his opinion on Tuesday – which was technically an agreement on a refusal to certify a case related to the speech – Thomas complained of the Court's previous first amendment, "public figures are prohibited from claiming damages for defamation unless they can The statement in question was made with "real malice", that is to say with the certainty that it was false or with reckless disregard as to whether it was false or not. "
Thomas wrote that the decisions made the plaintiffs subject to an "almost impossible standard" and that instead of "simply" applying the First Amendment as it was understood by the people who l? had ratified, the Court had let itself prevail in the field of politics and had fashioned its own rule.
"We should not continue to reflexively apply this policy-oriented approach to the Constitution," he said.
His opinion is based on the judicial philosophy of originalism, a theory also defended by Judge Antonin Scalia.
But while Scalia in her public speeches could criticize the New York Times v. Sullivan, he never wrote an opinion like Thomas's, perhaps out of respect for precedents.
Boutrous thinks that if Thomas put a marker, it was dangerous.
"If this view were to prevail, it would be a dramatic break from our democratic system, because the New York Times v. Sullivan upholds the basic principle that citizens must be able to express themselves without fear of being punished in any way. a civil case, especially when they criticize public figures and discuss issues of public interest, "he said.
Poser markers
Thomas's supporters, like conservative lawyer Charles J. Cooper, claim that Tuesday's opinion is an extension of his jurisprudence and reflects the fact that he has often shown the spotlight in a field of right which preoccupies him.
"The solemn concurring opinion of Thomas, in which he expressed the usual concerns of the originalists about the accuracy of the New York Times v. Sullivan, is consistent with his jurisprudence over the past two decades" said Cooper.
"There is simply no reason to doubt that Judge Thomas will continue to voice his concerns about the correctness of previous court decisions, regardless of their sacrosanct legitimacy," added Mr. Cooper.
Cooper points out the first opinions expressed by Thomas on the constitutionality of the bureaucracy, commonly called "administrative state".
During the 2014-2015 period, Thomas wrote three opinions on the issue.
For Thomas, when the Congress delegates its powers to federal agencies, it gives them too much power with too little responsibility. As Thomas said in Department of Transportation c. Association of American Railroads, the fight is about "the proper division between the legislative and executive powers".
"An examination of the history of these powers shows how far our modern jurisprudence on the separation of powers has departed from the original meaning of the Constitution," he wrote.
In 2015, Cooper wrote for National Affairs magazine: "Only Judge Thomas has constantly questioned the constitutionality of the modern administrative state".
Today, the issue has gained momentum and has become a flashpoint in Washington and an initiative of the Trump administration.
Indeed, Neomi Rao, a former employee of Thomas, is the director of the Office of Information and Regulatory Affairs. It is a little known entity within the White House Office of Management and Budget, responsible for ensuring that federal agencies comply with the law and act in accordance with the policies of the White House. l & # 39; administration. In short, Rao is the tsar of President Donald Trump for regulatory dismemberments.
She is also a candidate for the US Court of Appeals for the District of Columbia Circuit, a fertile ground for future judges.
The army of Thomas
Washington is currently filled with former employees and followers of Thomas.
Trump has appointed 11 former Thomas clerks for the courts. People like Gregory Katsas, who sat on the White House board and is now a member of the United States Court of Appeals for the District of Columbia. And James C. Ho, a Trump candidate who sits on the fifth circuit.
There are former clerks in the White House's attorney's office, including Assistant Attorney Patrick F. Philbin and Kate Comerford Todd, who is responsible for the process of appointing the judges of the Attorney General. from the White House Patrick Cipollone. Andrew Ferguson, another former clerk, was scheduled to join the White House team, but instead held a position as a nominee for Senate Judiciary Speaker Lindsey Graham.
There are also "honorary" employees – relatives of Thomas who have never worked for him – such as Alex Azar, Secretary of Health and Social Services, Senator Mike Lee, R-Utah, who sits on Judicial Committee. Mark Paoletta, General Counsel, Office of Management and Budget.
Jeff Wall, another clerk, is the senior US Deputy Solicitor General, pleading before the Supreme Court and helping navigate the government's call strategy.
And it's not just the members of the government that make their mark.
Carrie Severino is the Chief Counsel of the Judicial Crisis Network, a group dedicated to supporting Trump's nominees. In December, his group launched a $ 1.5 million digital cable and digital advertising campaign to confirm Conservative judges.
William S. Consovoy, who works in a private practice, is currently in federal court in Boston to challenge Harvard's use of race in admission plans. In total, five former Thomas clerks are working on the effort that could eventually lead to the Supreme Court and redress the precedent.
While the former clerks are not intimately related to Thomas's thinking, the sheer number of Thomas clerks currently serving in the administration is unusual.
Which does not mean that Thomas has enough votes on the court to have some of his opinions. But he is a prolific writer, even though he is alone, like Judge William Rehnquist before becoming chief justice in the mid-1980s.
It is almost impossible to deceive justice on the issue of retirement.
But one thing is clear: Thomas writes with the future in mind.
[ad_2]
Source link