Clarence Thomas' Latest Guns Decision Is Ahistorical and Anti-Originalist

[In It to Win It]

Slate

In a 6–3 decision reflecting the sharp partisan divide on the nation’s highest court, the Supreme Court struck down New York’s century-old gun law against concealed carry on Thursday. New Yorkers and residents of a handful of other states and the District of Columbia—which had more strictly regulated who can have a concealed-carry permit—must now accept the type of laws popular in Texas and other red states. The decision was hardly a surprise to court watchers, but the opinion is nonetheless troubling on many levels. The fact that this opinion was written by Justice Clarence Thomas, an originalist so rigid in his thinking that Justice Antonin Scalia once used him as a foil to distinguish his respect for precedent—”I’m an originalist and a textualist, not a nut,” Scalia quipped— contrasting the burn-it-all-down approach favored by his laconic colleague.

Ultimately, the majority opinion in NYSRPA v. Bruen is one of the most intellectually dishonest and poorly argued decisions in American judicial history. Indeed, with little sense of irony, Thomas even quotes Chief Justice Roger B. Taney’s infamous opinion in Dred Scott approvingly, not only treating it as good legal authority but suggesting that the author of the worst decision in American law understood the Second Amendment better than any other judicial figure in American history. Turning to Taney for judicial inspiration would have once ended a judge’s career, but the court’s new originalist majority appears most of the time to be making history by inventing it, instead of by interpreting the law. The old originalism of Robert Bork and Chief Justice William Rehnquist sought to use history to constrain judicial discretion and activism. The new originalism favored by Thomas and his fellow originalists has embraced judicial activism on steroids.

One of the most remarkable features of Justice Stephen Breyer’s trenchant dissent in Bruen is his frank assessment of the appalling quality of the history being pedaled by his colleagues. Calling out the justices for engaging in “law office history,” a degraded form of legal analysis that warps history to fit the desired ends favored by a judge or justice, is something scholars have criticized the courts—including the Supreme Court—for practicing with some frequency.

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[Baitball Blogger]

1. That's what I'm talking about.

Call these judges out on their poor reasoning. It's the only way we're going to challenge their cases.

[usonian]

5. Challenge to whom?

Rabbi suing because "live at conception" conflicts with his "live at first breath" belief.

So, it goes all the way to this? Overturn their own decision? (even if it's not explicitly "live at conception&quot



I don't know if there's a way to challenge (IANAL) or nullify or just ignore.

Inquiring minds want to know.

[Baitball Blogger]

6. We have to wait. Biden needs to move on increasing the number of judges on the Court.

Also, because the Rogue Court has behaved badly and does not represent the views of the majority of Americans, would not surprise me if the judges stumble in their own personal lives. Kavanaugh will probably turn up drunk one day to the wrong event and Clarence, well, hoping the J6 Committee's investigation into Ginni Thomas will lead to Clarence and continues to fracture the Court's raison d'etre.

[usonian]

8. Proves there's no sech thing as Antifa, and that Anonymous ain't on the case.

I posted elsewhere that I'm going to write whitehouse.gov and raise the urgency signal to use those GWB executive powers to deal in an extraordinary way to an extreme situation. This is comparable only to the Civil War, to which the PB's et. al. have alluded. Explicitly.

And Donald Duck was peeing his pants (even more so) to declare martial law. Under one (suspected) scenario, that was exactly what was planned, and that needs to come out. But it was extreme and seditious.

I suspect that Joe Biden is cautious and that DNC/advisors look at polls, which are backward-looking, and aren't planning an "appropriate" response. He has nothing to lose with the RW, who lambast him if he ties his shoelaces with unequal size loops, and many/most would admire forceful action, given the message "This was a F-ing civil war declaration, seditious shitstorm and the proof of that is clear"

I have this and a couple of other things to do, so maybe an OP tomorrow.

The "seed" (pun intended) of fear has been planted by distinctly fascist and unconstitutional actions. It will come to term.

The universe is a mirror. Evil deeds come back to the originator. Just not on our preferred time scale.
So, I won't wish anyone evil.

[Baitball Blogger]

10. Looking forward to your post.

I like where you're going.

[paleotn]

2. Originalism, logic, reasoned arguments have nothing to do with it....

This is all ideology, theology and Thomas's ax grinding about liberals. He's a sick piece of shit. He and Gini are well matched.

[Rhiannon12866]

3. Twitter replies:

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[Baitball Blogger]

7. "Clarence and Kav gonzo"

Maybe that's why their reasoning is so sloppy! They know the clock is running out on their good time.

[UTUSN]

4. K&R for idiot/him

[LonePirate]

9. Right wing judges will utter whatever nonsense supports their current position.

Anything in the past - be it years ago or yesterday - matters not. Furthermore, what they say or do tomorrow has no relevance either. Consistency in belief or logic is not a trademark of right wing thought. Obtaining power, executing it and maintaining it are all that matter to them. Those are the only core values that never change for them.

[LetMyPeopleVote]

11. The Five Worst Supreme Court Justices In American History, Ranked

In the legal community, Thomas is considered to be one of the worst SCOTUS justices in history

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https://thinkprogress.org/the-five-worst-supreme-court-justices-in-american-history-ranked-f725000b59e8/

5) Justice Clarence Thomas

Justice Clarence Thomas is the only current member of the Supreme Court who has explicitly embraced the reasoning of Lochner Era decisions striking down nationwide child labor laws and making similar attacks on federal power. Indeed, under the logic Thomas first laid out in a concurring opinion in United States v. Lopez, the federal minimum wage, overtime rules, anti-discrimination protections for workers, and even the national ban on whites-only lunch counters are all unconstitutional.

Though Thomas’s views are rare today, they have, sadly, not been the least bit uncommon during the Supreme Court’s history. He makes this list because, frankly, he should know better than his predecessors. As I explain in Injustices, many of the justices who resisted progressive legislation in the nineteenth and twentieth centuries were, like Field, motivated by ideology. Many others, however, were motivated by fear of the rapid changes state and federal lawmakers implemented in the wake of the even more rapid changes brought about by the Industrial Revolution. It was possible to believe, in a world where factories, railroads, and the laws required to regulate factories and railroads were all very new things, that these laws would, as Herbert Hoover once said about the New Deal, “destroy the very foundations of our American system” by extending “government into our economic and social life.”

But Thomas has the benefit of eighty years of American history that Hoover had not witnessed when he warned of an overreaching government. In that time, the Supreme Court largely abandoned the values embraced by Justice Field, and the United States became the mightiest nation in the history of politics and the wealthiest nation in the history of money.