Wednesday, August 01, 2007

Trifectas: Clarence Thomas and the J Continuum

As loathe as I am to be put into any sort of sentence, group, state, country, or world along with Supreme Court "Justice" Clarence Thomas, this is my third post for today -- a trifecta of non-thesis related work -- and this Slate article uses my favorite word to describe the assholish stylings of Thomas as he pretends, ever so faintly, to have used principles to come up with unprincipled decisions on free speech and integration. Some money shots:
Despite the vast differences between public education then and public education today, Justice Thomas evidently believes the question of whether students have free-speech rights should be answered by conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers, who should be asked: Do you think public-school students have a constitutional right to free speech while in school? This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?...

...he asks how those alive at the relevant time would have applied that language to a set of facts different than we face today. This elevates the expectations of the ratifiers and Framers over the meaning of the text itself. But the meaning of the text—as Justice Thomas surely would agree—must be paramount over the subjective expectations of any individual, whether alive or dead...

For someone lauded as the originalist's originalist, this is a pretty weak showing. For someone looking to advance a conservative political agenda, however, these three cases constitute a sort of trifecta: Curtail voluntary integration and student rights while boosting the rights of corporations. Not a bad couple of weeks... [i]n two of the three most important cases of the past term, Thomas was forced to abandon originalism—his version of it, anyway—in order to reach a politically conservative result. In the other, his originalist reasoning was weak at best.

Go. Read the whole article.

God I hate Clarence Thomas.

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