The conservative justice’s obsession with the past was on full display during the recent term.
.. It’s going on 50 years since Warren E. Burger, President Richard Nixon’s chosen chief justice and the first of his four Supreme Court appointees, took his seat in June 1969, initiating the turn to the right that continues to this day.
.. He has long insisted that the only legitimate way to interpret a constitutional provision is to give it the “public meaning” it supposedly had at the time it was written. So in 2011, for example, he dissented from a majority opinion written by Justice Antonin Scalia that struck down, on First Amendment grounds, a California law that made it a crime to sell a “violent” video game to a minor without parental permission. “The founding generation,” Justice Thomas wrote in dissent, “would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minor’s parents.”
.. In another case, Justice Thomas reiterated his vigorous and longstanding objection to the “negative” Commerce Clause. This is a doctrine that dates at least to the mid-19th century, prohibiting states from discriminating against out-of-state enterprises in favor of their own residents. It is based on the court’s “negative” interpretation of the Commerce Clause, which empowers the national government to regulate interstate commerce and so, by extrapolation, deprives the states of that power. The court has applied it dozens of times over many years as a bulwark against a feared “Balkanization” of the country. But it is not, as Justice Thomas has frequently pointed out, actually in the Constitution’s text.
.. Justice Thomas took aim in another solo concurring opinion at the court’s approach to what is known as severability, which dates to the 1850s. Under this doctrine, when the court finds that a portion of a statute is unconstitutional, it goes on to decide whether that portion is severable from the remainder of the law or whether the entire statute has to fall. The question is one of legislative intent: Would Congress have enacted the law without the offending provision? This was an important question in the first Affordable Care Act case and in the past term’s decision that permitted states to authorize sports gambling... In a second Fourth Amendment case, Justice Thomas dissented from a majority opinion by Chief Justice John G. Roberts Jr. that the government needs a warrant in order to search the cellphone location records that wireless carriers automatically collect and store as their phone-carrying customers go about their daily business. In deciding that the government’s acquisition of these records was a search within the meaning of the Fourth Amendment, the majority applied the 50-year-old “reasonable expectation of privacy” test, which does not depend on the government’s physical entry onto a suspect’s property... Taken as a whole, as the work of a single justice during a single Supreme Court term, they paint an extraordinary picture of a judge at war not only with modernity but with the entire project of constitutional law.
.. Young people graduating from law school today have never lived in a world in which Clarence Thomas was not on the Supreme Court. The very fact of his position and his persistence makes opinions that would have been hooted out of the room a few decades ago look respectable in many eyes. In 1997, in Printz v. United States, he was the first modern justice to assert that the Second Amendment guarantees an individual right to own a gun, and to invite anyone interested to bring the right case to a Supreme Court newly open for Second Amendment business. It took a mere 11 years, and we were handed District of Columbia v. Heller.
.. “Clarence Thomas Is the Most Important Legal Thinker in America.” I did a double take. How could the estimable Mr. Millhiser sign his name to such an exaggerated claim? But his argument was not that Justice Thomas, who recently turned 70, is winning victories today, but that he is paving the way for victories down the road — and perhaps not all that far down the road. Observing that 20 percent of Trump-appointed appeals court judges are Justice Thomas’s former law clerks, Mr. Millhiser wrote, “Thomas lost the war for the present, but he is the future of legal conservatism.”
A Liberal’s Case for Brett Kavanaugh
today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.
.. Several of Judge Kavanaugh’s most important ideas and arguments — such as his powerful defense of presidential authority to oversee federal bureaucrats and his skepticism about newfangled attacks on the property rights of criminal defendants — have found their way into Supreme Court opinions.
.. Except for Judge Garland, no one has sent more of his law clerks to clerk for the justices of the Supreme Court than Judge Kavanaugh has. And his clerks have clerked for justices across the ideological spectrum.
.. This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.
Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.
.. admirably confessing that some of the views he held 20 years ago as a young lawyer — including his crabbed understandings of the presidency when he was working for the Whitewater independent counsel, Kenneth Starr — were erroneous.
.. they could try to sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible.
This would be a mistake. Judge Kavanaugh is, again, a superb nominee.
.. pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task).
This Is the World Mitch McConnell Gave Us
it is, essentially, a kind of shrine to the political career of Mr. McConnell, not unlike the exhibits on Babe Ruth or Hank Aaron you’d find at the Baseball Hall of Fame.
.. it memorializes a politician who shows no sign of leaving the stage any time soon.
.. What’s most unusual, though, is what it chooses to highlight. There are a few artifacts from Mr. McConnell’s youth — his baseball glove, his honorary fraternity paddle — but most of the exhibits are devoted to the elections Mr. McConnell won, starting with high school and on up through Jefferson County executive and the Senate.
.. When I visited the room while researching my 2014 biography on Mr. McConnell, I was struck by what was missing: exhibits on actual governing accomplishments from the Senate majority leader’s four decades in elected office.
That absence confirmed my thesis that Mr. McConnell, far more even than other politicians, was motivated by the game of politics — winning elections and rising in the leadership ranks, achieving power for power’s sake — more than by any lasting policy goals.
.. it is becoming increasingly clear that Mitch McConnell is creating a legacy for himself, and it’s a mighty grand one.
.. Mr. McConnell has created the world in which we are now living. Donald Trump dominates our universe — and now has the power to fill the second Supreme Court seat in two years. Mitch McConnell, who has promised a vote on whomever the president nominates “this fall,” is the figure who was quietly making it all possible
.. First, there was Mr. McConnell’s vigorous defense, going back to the early 1990s, of the role of big money in American politics
.. helping shape the conditions for his appeal.
.. he was well aware that he, as someone lacking in natural campaign talents, and the rest of the Republican Party, as more business-oriented than the Democrats, would need to maintain the flow of large contributions to be able to win elections. “I will always be well financed, and I’ll be well financed early,” he declared after winning his first race for county executive, in 1977.
.. culminated in the Supreme Court’s 2010 Citizens United ruling eliminating limits on corporate spending on elections, which Mr. McConnell followed up by blocking legislation to disclose the identity of large donors.
.. the spread of big money in politics had done so much to sour the public on government, creating a ripe target for the Tea Party and, later, for a billionaire populist running against “the swamp.”
.. laid the groundwork for the right-wing insurgency of 2009 and 2010
.. his decision to withhold Republican support for any major Democratic initiatives in the Obama years. This meant that Republicans had less influence on the final shape of legislation such as the Affordable Care Act than they would have had as fully willing negotiators.
.. fueled the rise of the Tea Party, which was motivated substantially by the notion that Mr. Obama was “ramming things down our throats”.. his refusal to hold a confirmation hearing, let alone a vote on Merrick Garland, Mr. Obama’s nominee to replace Antonin Scalia on the Supreme Court, despite the fact that the nomination was made a full 10 months before the end of Mr. Obama’s term. This refusal exploded norms and dismayed Beltway arbiters who had long accepted Mr. McConnell’s claim to be a guardian of Washington institutions. It also provided crucial motivation to Republicans who had grave qualms about Mr. Trump but were able to justify voting for him as “saving Scalia’s seat.”.. Mr. Obama had been prepared that September to go public with a C.I.A. assessment laying bare the extent of Russian intervention in the election. But he was largely dissuaded by a threat from Mr. McConnell... During a secret briefing for congressional leaders, The Post reported, Mr. McConnell “raised doubts about the underlying intelligence and made clear to the administration that he would consider any effort by the White House to challenge the Russians publicly an act of partisan politics.”.. Mr. McConnell’s doing away last year with the 60-vote requirement for Senate confirmation, to get Neil Gorsuch seated.. In the 1970s, when he ran for county executive in Louisville, he secured the pivotal endorsement of the A.F.L.-C.I.O. by pledging to back collective bargaining for public employees (a promise that went unfulfilled), and while in office he worked effectively behind the scenes to protect abortion rights locally... Mr. McConnell saw the rightward swing of the Reagan revolution and decided to hop on board for his own political preservation as a Southern Republican. These days, Mr. McConnell has made explicit, with taunting tweets among other things, that he views long-term conservative control of the Supreme Court as his crowning achievement... Holding a long-term majority on the court greatly aids his highest cause — Republican victories in future elections — as recent rulings on voting rights and gerrymandering demonstrated once again.Whether Mr. McConnell decides to add an exhibit in the Civic Education Gallery documenting his role in the rise of Donald Trump is another matter. The final historical judgment on that score will not rest with him, in any case.
Justice Scalia’s Fading Legacy
The case required the court to interpret language in the Dodd-Frank law that provides a shield against retaliation for whistle-blowers who disclose violations of securities laws. To decide what kinds of disclosures qualify, the court had to explore the relationship between Dodd-Frank, enacted in 2010, and the Sarbanes-Oxley Act from eight years earlier; both offer whistle-blower protection that is similar but not identical.
.. None felt the obligation to defend or even explain the use of legislative history. There was no “tried and true circumlocution,” as Justice Samuel A. Alito Jr., in a tribute to Justice Scalia, put it in describing the usual effort by justices and lawyers alike to avoid Justice Scalia’s wrath by including such apologia as “For those who find legislative history helpful, I note ….” This time, the majority used legislative history because it was there to be used: It was useful.
.. The vote in the Digital Realty case was unanimous as to the outcome. But Justices Alito, Clarence Thomas and Neil M. Gorsuch withheld their signatures from Justice Ginsburg’s full opinion. Their objection was to the citation of the Senate report.
.. Before his death, the authors write, “it was common to see opinions that placed all discussion of legislative history in a final, separate part so that Justice Scalia could join the entire opinion except for that part.”.. In last month’s case, Justice Thomas’s separate opinion in turn provoked Justice Sotomayor, joined by Justice Breyer, to issue an opinion underscoring their agreement with Justice Ginsburg’s use of legislative history. Their concurring opinion reads like a declaration of independence in a post-Scalia world. “I write separately only to note my disagreement with the suggestion in my colleague’s concurrence that a Senate Report is not an appropriate source for this court to consider when interpreting a statute,” Justice Sotomayor wrote.. Legislative history is of course not the law, but that does not mean it cannot aid us in our understanding of a law.. I do not think it wise for judges to close their eyes to reliable legislative history — and the realities of how members of Congress create and enact laws — when it is available... During the Scalia era, useful clues to legislative meaning were studiously ignored by lawyers and judges alike, even though very few lower-court judges were ever as rigid as Justice Scalia in their approach to statutory interpretation... Judge Posner and Professor Gluck interviewed 42 federal appellate judges and found none who flatly refused to use legislative history — and a number who spoke, anonymously, with surprising disdain toward the Supreme Court’s rule-bound approach to interpreting statutes... With a handful of exceptions, most notably his 2008 majority opinion that established a right under the Second Amendment to keep a handgun at home for self-defense, Justice Scalia’s 30-year Supreme Court tenure left surprisingly little imprint on the law in terms of majority opinions that bear his name.