Thursday, February 22, 2018

Justice Thomas Stands Alone on Principle (Part I)

I have heard all the claims (mostly by the Left) that Justice Thomas is “stupid” because he very rarely asks questions during oral arguments. After independently studying the law, I have determined that Justice Thomas is probably the smartest Justice on the Court. A “stupid” person would hide behind precedent and join concurring and dissenting decisions. Thomas does not do this. He often writes separate concurring and dissenting opinions because he does not believe in the principles used by the majority and minority voices. That is what is great about the Supreme Court: Someone may concur with the result, but they can voice a different methodology or principles of getting to that result. Thomas does not hide, he offers his conflicting views in the open for all to see. He does this more than any other justice, by far. He may not ask many questions, but you know where he stands. Let’s examine the many decisions where Thomas has wrote separate opinions and stood alone. And let’s not forget many of the principles that Thomas stands for would be good for both liberal and conservative sects of the Court such as bringing back the Privilege and Immunities Clause in the Fourteenth Amendment.

The Privilege and Immunities Clause

In McDonald v. Chicago (2010) Thomas argued that the Court’s methodology used to elevate the Fundamental Right to “keep and bear arms” for self-defense was incorrect. The majority used the conventional practice of applying the Fourteenth Amendment’s Due Process Clause. However, Thomas suggests the Court stop this methodology once and for all and reinstate the Privileges and Immunities clause of the Fourteenth Amendment. That was the intent of the framers when they drafted the Privilege and Immunities clause: to elevate fundamental rights not found in the Constitution. Remember, the Privilege and Immunities clause was essentially written out of the Fourteenth Amendment in the Slaughter House Cases (1873). Thomas not only proposed to overrule the Slaughter House cases, but also United States v. Cruikshank (1876) which held that the Second Amendment and Fourteenth Amendment only applied to the states, and not individuals. This was second time that Thomas brought up revisiting the privileges and immunities clause. He originally brought it up in Troxel v. Granville (2000). It is interesting to note that Scalia and Thomas were on opposite sides of the Troxel decision. Scalia believes it is not a judges position to elevate fundamental rights, whereas Thomas thinks it is okay to elevate fundamental rights if it is done properly: through the privileges and immunities clause and not the due process clause.

The Establishment Clause

In Zelman v. Simmons-Harris (2002), Elk Grove Unified School District v. Newdow (2004), and Greece v. Galloway (2014), Thomas holds that the Establishment Clause does not apply to the states via the Fourteenth Amendment as most Bill of Rights clauses and Amendments do. The Establishment Clause of the First Amendment says “Congress shall make no law respecting an establishment of religion.” Thomas argues since the clause refers specifically to “Congress” thus it is “best understood as a federalism provision.”

Commercial Speech

Thomas firmly believes that Commercial Speech should be treated exactly the same as Political Speech. Political Speech is evaluated using “strict scrutiny” meaning that the burden is on the government to prove there is a compelling reason for the government to abridge First Amendments rights of individuals, groups, organizations, or corporations. Thomas disagrees with the Commercial Speech standards set forth in Central Hudson Gas and Electric v. Public Service Commission (1980). Commercial speech is mostly an issue between corporate advertisements and government regulations over such advertisements. So long as the advertisements are truthful Thomas believes there should be no difference in the judicial evaluation process for political and commercial speech. Thomas wrote separate opinions in Thompson v. Western States Medical Center (2002), Lorillard Tobacco v. Reilly (2001), United States v. United Foods (2001), Greater New Orleans Broadcasting v. United States (1999), Glickman v. Wileman Brothers (1997), and 44 Liquormart v. Rhode Island (1996) to stress this point.

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