Wednesday, August 01, 2007

Really dumb Supreme Court commentary

Conservative judges are typically opponents of judicial activism and proponents of the idea that laws have some fixed meaning that does not evolve with time. With a great deal of deliberate irony, the liberal media likes to attack these conservative judges with the claim that, in reality, it's conservatives who are the judicial activists. This article discussing the "faux originalism" of Supreme Court Justice Clarence Thomas actually goes a bit further than that. The claim here is that conservative "originalism" is a silly way for a judge to make desicision; so silly, in fact, that even Clarence "Mr. Originalist" Thomas just votes his conservative bias rather than take it seriously.

For example, here's how the article analyzes Thomas's ruling in the "Bong hits 4 Jesus" case:
Despite the vast differences between public education then and public education today, Justice Thomas evidently believes the question of whether students have free-speech rights should be answered by conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers, who should be asked: Do you think public-school students have a constitutional right to free speech while in school? This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?
I'm not a lawyer or a legal scholar, but I'm pretty sure that Clarence Thomas isn't staring into a crystal ball to make decisions.

Let's look at the article's argument in a bit more detail. The author states Thomas's opinion and criticises it with:
Thomas wrote a concurring opinion in both cases. In the first, he made the bold claim that students simply do not have any right to free speech in school. Why? Because those who framed the relevant constitutional language would not have expected students to have First Amendment rights while in school.

This is an extraordinary claim for many reasons, not the least of which is the fact that public schools did not exist when the First Amendment was drafted. Even by the time the 14th Amendment was adopted, making the First Amendment applicable to the states, public schools were just getting started. Few students attended school for more than five years; public high schools were virtually nonexistent; and compulsory education was still decades away.
The game being played here is obvious: the author is assuming a narrower focus to his argument than Thomas might have done. Whether or not the Founding Fathers did or did not have the slightest apprehension of the specific concept of a compulsory public school, they would have been more likely to have known the more general concept of compulsory attendance in general for citizens at the behest of government. Would the Founding Fathers have had an opinion about free speech rights of citizens, in general, who were compelled to attend some government function such as a jury trial? Yes, they most likely did.

The next attack follows up with the charge of hypocrisy:
But it gets worse for Justice Thomas, considering the second school case, this one about voluntary integration. Thomas also wrote a concurring opinion in that case, in which he lambasted those who try to integrate public schools, calling school integration an elitist fad. He also claimed that using race to integrate schools was obviously unconstitutional and made an impassioned argument in favor of colorblindness—the idea that governments can never take race into account, even to protect or assist minorities.

But guess what's missing entirely from this sweeping opinion? That's right: any consideration, whatsoever, of how the Framers and ratifiers of the Equal Protection Clause of the 14th Amendment would have viewed voluntary integration of public schools. The touchstone originalism of his Morse opinion is nowhere to be found.
Again, I'm not a lawyer or a legal expert, but it seems obvious that not every case that comes before the Supreme Court must go all the way back to some Constitutional touchstone. Perhaps, instead of starting with the 14th amendment and working his way forward, Thomas conceeded that some later law -- one of the subsequent civil rights acts maybe -- was undoubtedly constitutional and more relevant to the case. The whole point of originalism, after all, is that future legislators can change the meaning of the existing laws by enacting new legislation. If Thomas judged that the latest, most authoritative, constitutional legislative commentary on the 14th amendment with relevance to the case was, for the sake of argument, the Civil Rights Act of 1964, then there would have been no need to "hold a séance" with Charles Sumner and Thaddeus Stevens over the 14th amendment.

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