Tag Archives: Thomas

Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices. 

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,

“Originalism.”

That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith. 

They presume that the words of the Constitution possess essentially one “original” meaning.  And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of  originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement. 

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks. 

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.

 

 

Misunderstanding Religious Freedom

It was refreshing to read New York Times column responding to the recent–and I must say, weird and troubling–ruminations on same-sex marriage issued by Clarence Thomas and Samuel Alito.

The reason I label these “opinions” weird is that they were not dissents, not even concurrences. They were peevish outbursts–not far removed from “get off my lawn” explosions by cranky old guys. I’m unaware of other instances in which Supreme Court Justices used a unanimous and otherwise predictable decision as an opportunity to simply gripe that the world wasn’t going their way.

As David Von Drehle wrote,

It was an odd document, not a dissent; just a four-page grumble about matters that may someday be a problem depending on the facts of unknown future cases. The justices might consider woodworking, because, from the looks of this, they don’t have enough to keep them busy. The statement, which carries no legal weight, is essentially a cry from the heart on behalf of Americans whose religious views condemn same-sex marriage. Fair enough: The freedom to hold beliefs different from those of the mainstream is a cherished aspect of American liberty. But the statement crosses into sophistry by suggesting that religious liberties are somehow infringed if they aren’t privileged above the civil law.

And that, dear readers, is the crux of the matter. The piteous complaints that meet any effort to ensure the civic equality–note the word civic–of Americans who do not conform to their religious beliefs are based upon their conviction that they (and only they) are in possession of Truth, that they (and only they) know God’s Will, and that other citizens should therefore be forced to comply with their beliefs and their bigotries.

Von Drehle notes that the Justices offer no new basis for their opposition: he references Thomas’ 2015 argument that same-sex marriage is not mentioned in the Constitution– and points our the obvious: opposite-sex marriage isn’t mentioned there, either.

Thomas and Alito engage in a profoundly damaging legal error: religious freedom is not the right to impose some people’s beliefs on other citizens.

Far too many Americans define “freedom” as “my right to do what I want, no matter how harmful that may be to my fellow Americans.” We see that distortion in the refusal of “freedom fighters” to wear masks to protect the health of their neighbors.

Our legal system was profoundly influenced by what is sometimes called the “libertarian construct.” That construct provides that we each have the right to “self government”–to live our lives as we see fit, to worship or not, to form and exchange opinions, to go about our business free of official constraint– so long as we do not thereby harm the person or property of a non-consenting other, and so long as we grant an equal right to others.

There are all kinds of good-faith differences of opinion about the nature of the harms that justify government interventions–second-hand smoke? Seat belts? There is no such “gray area” when it comes to our obligation to extend “an equal right to others.”

When the issue is religious liberty, Von Drehle gets it right, and the Justices get it wrong.

By prohibiting establishment of a state religion, the Constitution explicitly bars “courts and governments” from preferring one set of religious views over any other set — or over nonreligious views…

Nor does religious freedom confer immunity from criticism. Religious freedom by its nature implies robust disagreement over strongly held values. Imprecations will be hurled, alas. Names will be called. Devout Christians should appreciate this; indeed, we are called blessed when we’re reviled for the sake of our faith. Furthermore, we’re taught to distinguish between civil and religious authority, and to render due respect to both.

Churches and other religious establishments rightly have certain protections from laws that might compel them to violate their beliefs while conducting their own business. It’s dangerous to confuse that safe zone with a general power to flout the law.

I say AMEN.

 

Wow..Talk About Your Double Standards!

The Supreme Court recently announced it will hear pending same-sex marriage cases, prompting the increasingly unhinged American Family Association to issue a press release titled “Kagan and Ginsburg: Recuse Yourselves!”

Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA President Tim Wildmon. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it.

Because Scalia and Thomas haven’t given us any hints about their approach to the subject..cough, cough. (One of Scalia’s sons directs an Ex-gay “reparative therapy” group, and has declared that homosexuality doesn’t really exist.)

A few observations: first, judges (including Scalia) are entitled to have personal opinions. What we have a right to expect is that they will render decisions based upon precedent and sound constitutional analysis, rather than twisting their legal analyses to fit their policy preferences. (Hint: Ginsburg and Kagan are not the Justices most often accused of that behavior.)

Second–where were these defenders of “high standards of integrity” when their fellow-travelers Scalia and Thomas had frequent, obvious and quite real conflicts of interest?

Both Scalia and Thomas accepted speaking engagements (including cushy travel and accommodations) before ideological groups funded by the Koch brothers, although there were cases pending before the Court in which the Kochs were deeply interested.

Scalia went hunting with then Vice-President Cheney at the same time that Cheney was party to a case before the Court (another one of his sons technically worked for Cheney at the same time, as top lawyer in the Bush Administration’s Labor Department); Thomas has refused to recuse himself in cases where the outcome was very important to the (ideological) organization employing his wife. If a lower court judge refused to recuse under such circumstances, that judge would be sanctioned under the rules cited by the AFA.

I have news for the AFA: being a nice human being while serving on the Supreme Court (the conduct of which Kagan and Ginsberg are guilty) is not how we define a conflict of interest. Even being an narcissistic asshole (Scalia) or a petulant advocate of long-discarded constitutional theories  (Thomas) while serving on the Court is not a conflict.

Refusing to recuse yourself from cases in which you or your spouse have a direct financial interest, or from cases to which your hunting buddy is a party, is.