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.”
Re-watching Joe Biden’s disastrous Anita Hill hearing: A sexual harassment inquisition
There was, Hill and others said later, some extreme tone deafness.
In asking Hill to describe the sexually charged moments with Thomas, Biden asked, “Can you tell us how you felt at the time? Were you uncomfortable, were you embarrassed, did it not concern you? How did you feel about it?”
The most brutal questioning came from Biden’s Republican colleague on the committee, the late Sen. Arlen Specter of Pennsylvania.
“You testified this morning,” Specter said, “that the most embarrassing question involved — this is not too bad — women’s large breasts. That is a word we use all the time. That was the most embarrassing aspect of what Judge Thomas had said to you.”
Hill quickly chided Specter for not characterizing her remarks correctly. Left uncritiqued: Specter’s suggestion that talk of breasts at work was, you know, no big deal.
Specter could not understand, he said, how a seasoned lawyer like herself had not taken notes on the incidents. That was suspicious to him. He openly wondered about her political motivations and whether the committee should trust her recollections of the incidents between her and Thomas, who adamantly denied every allegation.
Al Franken’s ‘Saturday Night Live’ era was full of jokes disparaging women
On the sixth floor of 30 Rock, women have long been portrayed as sexual conquests, victims or aggressors, live on Saturday nights. During the 1990s in particular, SNL excelled at celebrating male libido and a get-away-with-anything approach to sex, while reducing women to their sexual function. The show consistently cheered male sexuality and reinforced its boundlessness (consent be damned), while shaming women who reached for power or were unlucky enough to be publicly associated with sex.
The SNL writers’ room is famously collaborative, so it’s hard to know how many such bits Franken specifically wrote. But as a writer on 285 episodes from 1976 to 2008, he undoubtedly influenced the zeitgeist of the show during that era.
.. Again, the laughs: Thomas’s sexual inadequacy is what’s supposed to be funny. SNL imagines that sexual harassment is hilarious and that unattractive women deserve it... One 1996 skit about O.J. Simpson prosecutor Marcia Clark portrays her as an erotomaniac or “fatal attraction type” — a derogation hurled at women during the 1990s, including at Anita Hill and Monica Lewinsky, to discredit them and weaponize their sexuality. Clark, played by Nancy Walls, is less interested in the case’s outcome than forcing fellow prosecutor Christopher Darden to sleep with her, or “take the black bronco down the 405,” as the show put it. “The only thing I’m guilty of is being extremely horny,” Walls says. “Please remove your pants.”.. If SNL women weren’t sexual victims or erotomaniacs, they were not real women at all. Will Ferrell’s career was made in part by his “Janet Reno’s Dance Party” sketches, which rendered the first woman attorney general as a gangly man with an awkward deep voice, skirt and pearls... Ferrell said in an interview that he wouldn’t have played Reno the way he did if she were a “normal woman.” In other words, because Reno didn’t always fit neatly into the stereotypical roles SNL ascribed to women — sexually aggressive like Clark or sexually victimized like Hill — the country’s chief law enforcement officer became a fake woman, just Ferrell in drag... What’s clear, in truth, is that American comedy culture has used sexual abuse as fodder for too long... From Franken and Harvey Weinstein to Roger Ailes and Bill O’Reilly, women are reckoning with the painful reality that powerful men recently accused of sexual misconduct have long been the media and cultural gatekeepers in America.They’ve been the arbiter and the lens, determining what is newsworthy, what is socially acceptable and, in Franken’s case, what is funny... You can tell an awful lot about a society based on what it thinks is funny.
The Hillary Effect
when Barack Obama stepped off a stage and into Weinstein’s arms for a big hug after giving a $400,000 speech as an ex-president in the spring, it sent a signal that the ogre was in a protected magic circle.
.. would Senator Kirsten Gillibrand and other liberals still be saying in the past few days that Bill Clinton should have resigned the presidency over his own sexual misdeeds if he now occupied the first lady’s quarters and reigned over a potent Clinton political machine?
.. Or would feminists and liberals make the same Faustian bargain they made in 1998: protect Bill on his retrogressive behavior toward women because the Clintons have progressive policies toward women?
.. Perhaps because in those earlier traumatic sagas, both the left and the right rushed in to twist them for their own ideological ends. The stench of hypocrisy overpowered the perfume of justice.
- .. First, with Clarence Thomas, a feminist lynch mob tried to kill off a conservative Supreme Court nominee over sex when the real reason they wanted to get rid of him was politics.
- Then, with Bill Clinton, a conservative lynch mob tried to kill off a Democratic president over sex when the real reason they wanted to get rid of him was politics.
.. Time and again, Hillary was a party to demonizing women as liars, bimbos, trailer trash or troubled souls when it seemed clear they were truthful about her philandering husband. She often justified this by thinking of the women as instruments of the right-wing conspiracy.
As I reported in ’98, even some veteran Clinton henchmen felt a little nauseated about the debate inside the White House on a slander strategy for Lewinsky: Should they paint her as a friendly fantasist or a malicious stalker?
Following the Clintons’ lead, Trump dismissed the more than dozen women who stood up to accuse him of sexual transgressions as politically motivated liars... Trump has refused to disavow the Stephen Bannon-backed candidate, at one point claiming he didn’t know enough about Moore to comment because he does “not watch much television.” (!!).. Ivanka Trump said that she has “no reason to doubt the victims’ accounts” in the Moore case, but she doesn’t feel the same about her dad’s accusers... Bannon dismissed the report of Moore’s despicable behavior by saying that it was, just like Trump’s “Access Hollywood” remarks, first published in The Washington Post — which he calls “part of the apparatus of the Democratic Party.”.. It’s easy to turn on the Clintons these days and treat them as collateral damage, the way the Clintons treated all those women who got tangled up with Bill.