Progressives outside the Court correctly interpreted the subtext of the Breyer dissent. “Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade,” declared one columnist. Liberals are skiing so fast down this slope they can’t stop to think.
Justice Thomas is the only Justice who has endorsed overturning Roe. Chief Justice John Roberts and Justice Brett Kavanaugh are wary enough of abortion politics that they declined to hear a case last year involving Medicaid provider contracts ostensibly because Planned Parenthood was a plaintiff. The High Court will eventually address abortion rights, but it is likely to do so incrementally unless it is forced to take on Casey and Roe directly by some state law. And even then we don’t know what the Justices would do.
A road map from the Watergate prosecution shows a potential route for the special counsel to send incriminating evidence directly to Congress.
But a 44-year-old “road map” from the Watergate prosecution shows a potential route for Mr. Mueller to send incriminating evidence directly to Congress. The road map was devised in 1974 by the Watergate special prosecutor, Leon Jaworski, with our assistance. We wrote the road map — actually a report — to be conveyed to Congress; it was called “Report and Recommendation” and served as a guide to a collection of grand jury evidence contained in a single document. That evidence included still-secret presidential tape recordings that had been acquired through grand jury subpoena — but which had been withheld from Congress by President Nixon.
The recent decision by Washington’s Federal District Court chief judge, Beryl Howell, to release the document from the National Archives provides a historic legal precedent that could be a vehicle for Mr. Mueller and the grand jury assisting him to share the fruits of their investigation into possible criminal conduct within the Trump presidential campaign and subsequent administration.
.. In all the discussion about Mr. Mueller’s options when he concludes his investigation, little attention has been paid to the potential role of the grand jury. Chief Judge Howell’s decision unsealing the Watergate road map brings new focus on the role the grand jury might play in the dynamics of the endgame. Although the grand jury is a powerful tool for federal prosecutors, it has historic and independent power and operates under the supervision of the federal judiciary. Following the Oct. 20, 1973, “Saturday Night Massacre” — in which President Nixon forced the Justice Department to fire the original special prosecutor, Archibald Cox — the Watergate grand jury played a critical role in forcing the president to back down, hand over the subpoenaed tapes and appoint a new special prosecutor.
.. Although Mr. Cox had been fired, his staff — duly appointed federal prosecutors — had not. The grand jury, as an arm of the judicial branch, could not be fired by the president. Indeed, Judge John Sirica of the United States District Court immediately summoned the grand juries (there were two) to his courtroom and exhorted them to continue to pursue their investigations and assured them that they could rely on the court to safeguard their rights and preserve the integrity of their proceedings.
.. In the face of Congress’s inability to obtain evidence that the grand jury well knew incriminated the president, we prepared the grand jury report to Judge Sirica and requested that he use his plenary authority to transmit that evidence to the House Judiciary Committee
.. It was carefully written to avoid any interpretations or conclusions about what the evidence showed or what action the committee should take. The report contained a series of spare factual statements annotated with citations to relevant transcripts of tapes and grand jury testimony. Copies of those tapes and transcripts were included as attachments.
.. Much note has been made of the fact that the Justice Department regulations under which Mr. Mueller was appointed actually require him to submit a report to the attorney general. Importantly, nothing in the department regulations prohibits Mr. Mueller’s Department of Justice superior, now Mr. Whitaker, from refusing to release the report.
.. What if Mr. Mueller concludes that the president has committed a crime? The question of whether a sitting president can be indicted remains a subject of vehement debate among scholars. But assuming that Mr. Mueller follows what many regard as “current Justice Department policy” based on several past internal legal opinions that an indictment is inappropriate, then the appropriate place for consideration of evidence that the president has committed crimes rests definitively and exclusively with Congress.
.. If Mr. Mueller has obtained such evidence, his responsibility and the correct operation of our system of government compel the conclusion that he and the grand jury can make that evidence available to Congress through a report transmitted by the court.
.. With the fox now guarding the henhouse, there is sufficient precedent for the grand jury and Special Counsel Mueller to seek the chief judge’s assistance in transmitting a properly fashioned report to Congress.
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.”