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from the we-won't-hear-the-case,-but-if-we-could... dept.
The Washington Post has some analysis of a noteworthy Supreme Court non-decision.
In today's [March 6] Leonard v. Texas, Justice Clarence Thomas sharply criticizes civil forfeiture laws. The one-justice opinion discusses the Supreme Court's refusing to hear the case (a result Thomas agrees with, for procedural reasons mentioned in the last paragraph); but Thomas is sending a signal, I think, that at least one justice — and maybe more — will be sympathetic to such arguments in future cases.
From Justice Thomas' statement:
In rem proceedings often enable the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent (though some statutes, including the one here, provide for an innocent-owner defense). Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.
Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable.
[...] These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.
(Score: 1, Interesting) by Anonymous Coward on Friday March 17 2017, @02:07PM (9 children)
The knock on Thomas for a very long time was that he wasn't much of an original thinker and that he largely stayed in the background and concurred with whatever position Scalia took. It will be interesting to see if his positions change over the next several years, or whether it has always been the case that he and Scalia really were of the same mind.
(Score: 4, Interesting) by AthanasiusKircher on Friday March 17 2017, @04:12PM (8 children)
The knock on Thomas for a very long time was that he wasn't much of an original thinker and that he largely stayed in the background and concurred with whatever position Scalia took.
I'm no fan of most of Thomas's views, but that was only nonsense spun out of leftist media, who sought from the beginning to portray Thomas as unqualified for the job (if not an outright "Uncle Tom"; seriously if you missed it, we've even had members of Congress using that term publicly to apply to him).
People really
It's also a myth propagated by those who want to portray Thomas's silence in oral arguments as some sort of proof that he doesn't know or doesn't care what he's doing. Those people don't know anything about SCOTUS procedure or appellate courts in general, where most of the "work" is done behind closed doors in reading literally hundreds of pages of documents per case. The few minutes of oral argument are basically a last-minute opportunity for each side to highlight the most salient facts, and for the justices to ask some pointed questions. Years ago, the court was a lot less active and let lawyers make their case; Thomas has publicly stated on numerous occasions that he wished his fellow justices were tone it down a bit more and let the lawyers talk.
If you have any doubt of Thomas's intellect or that he is "of his own mind," I strongly encourage you to watch any of the many public interviews he's given over they years or simply read his opinions.
In reality, Thomas is one of the most frequent justices to offer his own concurring or dissenting opinion (even if brief) which generally states his own legal rationale for coming to his conclusion. Frankly, some of those views are so far off the edge of the legal spectrum of "mainstream" views (and yes, I'd count Scalia within the "mainstream" for the most part) that it's positively shocking. Scalia was known for originalism, but he also believed in stare decisis to a point; i.e., if law has been settled for decades, we'd need a good reason to overturn even a bad precedent. Thomas, on the other hand, would be quite happy to take American jurisprudence back in time and overturn 150-year-old precedents if necessary to restore his originalist positions.
It will be interesting to see if his positions change over the next several years
People really underestimate Thomas's influence. He has single-handedly taken fringe legal positions that haven't been viable for a century and returned them to debate in some of his SCOTUS opinions. People just talked about Scalia more because he was an entertaining writer and made a "good show" which the media could easily excerpt soundbites from. It's a lot harder to cover the systematic attempts to dismantle our entire modern jurisprudence in a 3-minute news segment, so Thomas never gets as much attention.
(Score: 3, Interesting) by AthanasiusKircher on Friday March 17 2017, @04:23PM
By the way, if anyone doubts what I said, here are a couple [politico.com] articles [usatoday.com] from the past year talking about the problems with the common myths around Thomas.
(Score: 2) by bob_super on Friday March 17 2017, @05:16PM (4 children)
My main issue with Justice Thomas is that his vote is so predictable.
If there is a conservative way to view of a case, he will always* vote for that view, pretty much regardless of the other factors involved. I can't name a single high-profile case in which his vote wasn't obvious as soon as the court decided to get involved.
To me, that doesn't make him a fair judge deciding on law and facts.
.
*: I'll admit that I have missed some low-profile case where he might have done otherwise.
(Score: 3, Informative) by AthanasiusKircher on Friday March 17 2017, @05:34PM
While it's a few years out of date, I'd suggest this article [slate.com] for some examples of where Thomas sided with liberals. Stats and breakdowns for rulings are easily found on SCOTUSblog too, so you can look up the other weird alliances between Thomas and some liberal justices.
Basically, Thomas is rather kooky and adheres so strongly to certain principles that he sometimes ends up on the "liberal" side of a case. Of course, part of the problem is the one-dimensional political spectrum metaphor -- in reality, there are many possible positions and a lot of inconsistency in the stereotypical "conservative" and "liberal" positions. Thomas is definitely a bit of a wildcard in some cases, though not necessarily because he's "liberal" in some areas -- he's generally so conservative in some sort of wacky way that he ends up swapping sides. (There are a couple high-profile cases where Thomas actually has gone with the liberals for more "stereotypically liberal" reasons -- the most prominent one I can think of was the cross-burning case from the early 2000s, where Thomas basically viewed cross burning as a form of "hate speech" that could be outlawed, though he didn't use that term. But you're right that those sort of cases for him are rare.)
(Score: 0) by Anonymous Coward on Friday March 17 2017, @06:39PM
You liberals just hate him because he is black.
Well that and him not acting the way he is "supposed to" act.
(Score: 2) by Kromagv0 on Friday March 17 2017, @08:40PM (1 child)
My main issue with Justice Thomas is that his vote is so predictable.
If there is a conservative way to view of a case, he will always* vote for that view, pretty much regardless of the other factors involved.
I hope you at least apply the other side of that coin to other justices. The majority of the justices are like that but Justice Thomas appears be the strongest example on the right but it looks like Justice Sotomayor [wikipedia.org] would be a pretty good example on the other side.
T-Shirts and bumper stickers [zazzle.com] to offend someone
(Score: 2) by bob_super on Friday March 17 2017, @09:16PM
Good point!
It is a problem of perception indeed, where it's a lot easier to rationalize someone making the decisions you approve of.
I do have more examples in my head of Justice Sotomayor (or the other liberal-minded) siding with the conservative side, which I usually can put on the strict interpretation of the texts trumping my modern tolerant biases, while some of the most "conservatives be conserving" votes embodied by Justice Thomas feel more contrived or out-of-touch.
I'd honestly have to make a rigorous list to check whether selective memory in a factor.
Trivialize the positive, never forget the outrageous! (is that FN's slogan, or my wife's?)
(Score: 0) by Anonymous Coward on Friday March 17 2017, @06:03PM (1 child)
What is your opinion on judges like Thomas and Scalia thinking or saying they are "originalists"? Do you think they really think of themselves that way? Because it is impossible to consistently hold and apply those views 200+ years later. Scalia was certainly not shy to go against his originalist objections when it suited him, for instance in his arguing GWB's equal protection rights were being denied in the 2000 election.
In this Thomas opinion he has a nice section where he points out that civil forfeiture was practiced by the founding fathers, then goes on to make the argument how times and circumstances have changed and how it shouldn't be applied so easily these days. To me, that sounds very un-originalist (and reasonable). Playing the originalist card in an argument always struck me as the lazy way out; "instead of having to research and write up a long and compelling argument, I will just claim 'original intent' and go hit Happy Hour."
(Score: 2) by NewNic on Friday March 17 2017, @06:31PM
Please ask any one of these originalists where the word "affects" appears in the Commerce Clause.
lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory