Justice Clarence Thomas Mulling Retirement

Discussion in 'Off-topic' started by Malum Prohibitum, Feb 25, 2019.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    While the focus has been on Ginsburg, a Feb. 13 New Yorker article considers whether Justice Clarence Thomas is considering retirement.

    Thomas is 70 and is “the longest-tenured associate justice on the court,” the New Yorker reports. “With 53 Republicans now in the Senate (and no filibusters allowed on Supreme Court nominations), President Trump would have a free hand in choosing a dream candidate for his conservative base if Thomas were to retire this year.”

    Thomas hasn’t hidden the fact that he doesn’t enjoy his job as a justice, but his friends say he feels an obligation to remain on the bench as long as he is able, according to the article. But the New Yorker suggests that President Donald Trump may be thinking about a possible Thomas retirement because the president “has shown unusual solicitude for Justice Thomas and his wife, Ginni, a hard-right political activist.”

    Trump invited the Thomases to dinner, and he also invited Ginni Thomas and some of her colleagues to the White House for a discussion.

    “Trump rarely engages in this kind of cultivation,” the New Yorker reports. “And it’s reasonable to speculate that he’s trying to persuade the justice that his seat would be in good hands if he decided to leave.”
    http://www.abajournal.com/news/arti...ro&utm_medium=email&utm_campaign=weekly_email
     
  2. StarJack

    StarJack Well Aged Member

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    Lord knows I'd hate to see it. But he's coming up on year 28 on the bench, and if he wants it, so be it. Retiring while DJT is in office at least leads one to believe a judge of somewhat similar originalist beliefs would replace him. But darn, I'll hate to see him go whenever it happens.

    Read My Grandfathers Son to know Justice Clarence Thomas better, and understand the many and extremely difficult obstacles to success this great man overcame.

    There are a veritable plethora of interviews with Justice Thomas, the one he did with his wife a little over a year ago is one of my favorites from a perspective of revealing the man himself.
     

  3. timbrubaker

    timbrubaker I may be slow, but I sure am ugly

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    There was a time when I thought Scalia was irreplaceable, but the more I read about Thomas’s opinions the more I’ve come to see him as the indispensable associate justice. Hopefully he rubs off on the new members.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    You should have paid more attention back in 2005, Raich v. Gonzalez, when Scalia joined the liberal majority to declare that the Commerce Clause covered homegrown marijuana. There was no principle to that decision. He just did not like the fact that the constitution does not authorize Congress to ban drugs. Thomas dissented, stating that Scalia and the others had declared the authority of Congress to regulate quilting bees and pot luck dinners throughout the 50 states.

    The Ninth Circuit had ruled that no, the Commerce Clause does not go do far.

    The Ninth Circuit also ruled that Congress could not regulate home made machine guns. Thanks to Scalia, that case got reversed, too, in a terse one sentence Supreme Court decision, "see Raich," all because Scalia dropped his "originalist" principles when it came to that evil marijuana.

    You either have principles, or you don't. Scalia merely pretended to have them.

    Thomas is the most principled Justice there. I will be sad when he retires. There is none like him.
     
    Last edited: Feb 25, 2019
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  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I mean think about that for a minute. The Ninth Circuit struck down Congress' ability to regulate homemade machine guns.

    If we had 5 Clarence Thomases, the legal landscape would be very different out there right now.

    Congress would have been reigned in from so many areas of our lives.

    But, no, thanks to Scalia and the others, Congress has virtually unlimited powers.
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    They had 5 votes without Scalia concurring, but I lost all respect for him on that day.

    Here is the opening of Thomas' dissent. If you want to read more, a link to it is below.

    Justice Thomas, dissenting.

    Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.

    I

    Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.” U. S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct.

    A

    As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586–589 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term “ ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586–587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange—not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112–125 (2001). The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857–862 (2003).

    Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States.” Art. I, §8, cl. 3. Ante, at 19. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California—it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

    On this traditional understanding of “commerce,” the Controlled Substances Act (CSA), 21 U. S. C. §801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market—intrastate or interstate, noncommercial or commercial—for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.

    https://supreme.justia.com/cases/federal/us/545/1/#tab-opinion-1961871
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    When agents from the Drug Enforcement Administration raided Monson’s home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers—as expanded by the Necessary and Proper Clause—have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The best quote:

    This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “ ‘the production, distribution, and consumption of commodities.’ ”[Footnote 7] Ante, at 23 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8–9 (O’Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).
     
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  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    and the second best quote:

    Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term.


    :lol:

    Thomas is by far the best Justice sitting on that court. I do not trust Trump to replace him with anybody even remotely like him, rather than a Scalia sort of Justice. :-|
     
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  10. timbrubaker

    timbrubaker I may be slow, but I sure am ugly

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    Agree on all points Ed.
     
  11. DonT

    DonT Deplorable bitter clinger.

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    MP...great insights on Justice Thomas. I learned something here.
     
  12. Craftsman

    Craftsman Well-Known Member

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    Scalia was a little too trusting of 'Law and Order'. He believe Police were always the good guys and that drug laws had moral weight. Other than that he was better than most hard-left justices we have suffered under. You are correct in that Thomas is the most principled justice. I'd hate to see him go. I doubt he is planning to leave any time soon, especially as he court leans more and more in his direction. I relish some of his opinions on 2A cases we should be seeing more of in the future. No, he isn't going anywhere. He is about to have some fun.
     
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  13. Wegahe

    Wegahe NRA Instructor

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    Maybe Thomas will stick around long enough to undo some of the mistakes in judgement Scalia made on Constitutional gun rights now that he has some help that should sign on to his way of understanding.

    I would like to see a SCOTUS ruling on what shall not be infringed really meant in it's original understanding.
     
  14. Nemo

    Nemo Man of Myth and Legend

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    I suspect he would hold that it means what it says. Shall Not Be Infringed means exactly that. Not Infringed.

    As far as the rest of it, I suspect that would be exactly what it says also. No more and most importantly no less.

    Nemo
     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    https://www.cnn.com/2018/02/23/politics/supreme-court-heller-thomas-2nd-amendment/index.html

    Thomas, in an opinion released on Tuesday, criticized the courts for a "general failure to afford the 2nd Amendment the respect due an enumerated constitutional right." He was writing a dissent after his colleagues declined to take up a challenge to California's 10-day waiting period as it applies to individuals who already own guns.

    "The lower courts are resisting this court's decision" in Heller, Thomas complained, "and are failing to protect the 2nd Amendment to the same extent that they protect other constitutional rights."

    The 69-year-old justice also turned to his own colleagues on the bench bemoaning the fact that there haven't been the necessary four votes to take up a major 2nd Amendment related case since Heller.
    "If a lower court treated another right so cavalierly, I have little doubt that this court would intervene," Thomas said. "The 2nd Amendment is a disfavored right in this court."

    No other justice joined Thomas's dissent in the California case . . .​
     
    Last edited: Feb 26, 2019
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  16. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Same article:

    In his opinion on Tuesday, Thomas wrote that cases concerning "abortion, speech and the Fourth Amendment are three" of the Court's favored rights. "The right to keep and bear arms," he said, "is apparently this Court's constitutional orphan."
     
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  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The district court ruled in favor of Silvester and Combs, two lawful California gun owners who, along with two nonprofits, challenged the law. But the 9th U.S. Circuit Court of Appeals reversed the lower court’s ruling.

    Thomas went on to note that the appeals court’s “deviation from ordinary principles of law is unfortunate, though not surprising,” and said he has observed a trend among the lower courts to resist the Supreme Court’s decision in the cases Heller v. District of Columbia and McDonald v. City of Chicago.

    The justice said that in resisting the high court’s decisions in each of those cases, the lower courts are “failing to protect the Second Amendment to the same extent that they protect other constitutional rights.”

    “In the Ninth Circuit, it seems, rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in our text,” Thomas wrote.

    https://www.washingtonexaminer.com/...-gun-law-second-amendment-is-disfavored-right
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The district court ruled in favor of Silvester and Combs, two lawful California gun owners who, along with two nonprofits, challenged the law. But the 9th U.S. Circuit Court of Appeals reversed the lower court’s ruling.

    Thomas went on to note that the appeals court’s “deviation from ordinary principles of law is unfortunate, though not surprising,” and said he has observed a trend among the lower courts to resist the Supreme Court’s decision in the cases Heller v. District of Columbia and McDonald v. City of Chicago.

    The justice said that in resisting the high court’s decisions in each of those cases, the lower courts are “failing to protect the Second Amendment to the same extent that they protect other constitutional rights.”

    “In the Ninth Circuit, it seems, rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in our text,” Thomas wrote.

    https://www.washingtonexaminer.com/...-gun-law-second-amendment-is-disfavored-right
     
  20. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The justice said he believed four members of the court would have agreed to consider cases involving a 10-day waiting period for abortions, a 10-day waiting period for the publication of racist speech, and a 10-minute delay of a traffic stop.

    “The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights,” Thomas wrote. “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.”

    Same link
     
  21. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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