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Clarence Thomas, Liberal?
No, of course not. But the conservative jurist did side with the Ginsburg, Stevens, Kennedy, Souter, and Breyer in the case of Wyeth v. Levine. The court ruled that FDA approval doesn't insulate drug companies from law suits. Thomas wrote a separate opinion taking shots at the court's use of pre-emption, letting federal law supercede state law. Still, it was an interesting ruling and surprising to see Thomas break from Alito, Scalia and Roberts.
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Eric
i wonder if having a AA president has given 'Uncle Ruckus' a little confidence boost...will wonder's never cease?
March 4, 2009 4:00 PM | Reply | Permalink
I think this is the first time Thomas ever parted company with Scalia. Wow.
March 4, 2009 4:04 PM | Reply | Permalink
I always thought the government could save $208k per year by getting rid of Thomas and just giving Scalia two votes.
March 4, 2009 4:32 PM | Reply | Permalink
Good one.
March 4, 2009 4:33 PM | Reply | Permalink
As a pretty committed Court-watcher, I actually think Thomas is much more intellectually coherent than Scalia. Thomas is willing to take the conservative framework to its logical conclusion. E.g., he's written about overturning much of the modern administrative state, revisiting the Commerce Clause jurisprudence, etc. Basically, he's willing to take the "originalist" perspective to its natural conclusion.
I don't agree with that. But I think I agree with it more than Scalia's "this far, but no further" decisions. At minimum, it shows he actually believes this shit and doesn't chicken out for political reasons.
March 4, 2009 5:07 PM | Reply | Permalink
Thanks. That's a surprising one. For once I agree with scalia. A miracle. Are you sure there wasn't a typo and they screwed up on which judge concurred with stevens. I find this one hard to believe in light of scalia's track record. I guess miracles will never cease.
March 4, 2009 5:16 PM | Reply | Permalink
Now, this one applies to this post. Yes, it is my understanding that thomas wants to unwind the new deal and go back basically to the 19th century. That is a problem for me and really is kind of silly to be frank. I guess it depends on your definition of conservative, but I wouldn't call this philosphy conservative, nor would I call thomas coherent. I read some opinions off and on and am not a committed watcher like you and was obviously unfamiliar with hamdi decision.
March 4, 2009 5:22 PM | Reply | Permalink
I cannot remember the author offhand, however there was a recent new book on the Court and it suggested that it is Thomas -- despite his absolute silence on the bench -- is the jurist from whom Scalia takes his lead. Scalia is the vocal one, but seems to get the structure for his arguments from Thomas.
I noticed something at the non-State of the Union address: while Roberts and Alito most notably were not so smiley when they walked in and when greeting the President, it was Thomas (standing next to Ginsburg) who was beaming, huge grin and a very hearty handshake and pat on back for President.
I would not be surprised if this new President gives Thomas the political cover he needs to move left, and disentagle himself from Scalia and now Roberts and Alito.
March 4, 2009 5:23 PM | Reply | Permalink
Don't hold your breath.
March 4, 2009 7:39 PM | Reply | Permalink
He had to come up for a breath sometime.
March 4, 2009 9:54 PM | Reply | Permalink
The preemption issue is one of those where conservatives conveniently flip sides. Their love for protecting big business wins out over their love for protecting states' rights -- so, they favor federal preemption of state law, where preemption will protect the interests of big business (in this case pharmaceutical companies).
Thomas's position is actually respectable for its intellectual consistency -- he has always been a big states' rights conservative, and he's sticking to that stance even where it leads him away from the typical conservative position on this issue.
I'm no fan of Thomas's, but you have to give him a nod here. And for the record, he has broken with Scalia numerous times -- notably, for example, in one of the Guantanimo cases, where Thomas's love for Executive power led him to give the Bush administration a greenlight to do whatever it wanted, while Scalia gave the Bush administration a smackdown for threatening basic constitutional rights.
March 4, 2009 4:13 PM | Reply | Permalink
Huh? What gitmo case did scalia not rubber stamp the king's acts? I'm unfamiliar with that one.
Also, he broke with scalia numerous times? I'm not familiar with that either. I was under the impression that he was in scalia's pocket. On most major opinions he co-signs with scalia.
This is the first time that I am aware of him ever breaking with the reactionary wing of the court, ever. It actually is very surprising based on his prior track record.
Maybe obama has influenced thomas. That would be fascinating.
March 4, 2009 4:29 PM | Reply | Permalink
"Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "invasion" or "rebellion", which had not happened); or Hamdi must be tried under normal criminal law.
"Justice Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit's ruling, based on his view of the important security interests at stake and the President's broad war-making powers."
http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld
March 4, 2009 5:09 PM | Reply | Permalink
Oops linked to the wrong comment. Thanks. That's a surprising one. For once I agree with scalia. A miracle. Are you sure there wasn't a typo and they screwed up on which judge concurred with stevens. I find this one hard to believe in light of scalia's track record. I guess miracles will never cease.
March 4, 2009 5:18 PM | Reply | Permalink
One more, when has scalia ever given the king's administration a smackdown for threatening basic constitutional rights. I would love to read that opinion. Which one?
This is more scalia's tactic. He's a strict, strict constructionist on the recusal issue. He doesn't see a problem with paying off a judge as long as the judge twists his decision to make it sound legit, when it isn't. That's scalia's speed.
http://marketplace.publicradio.org/display/web/2009/02/12/medicare_for_everyone/
March 4, 2009 4:32 PM | Reply | Permalink
Scalia joined with Stevens in dissent in the Hamdi decision -- against the Bush administration. (Sorry, I said it was a "Guantanamo" case, when technically it was about detentions on U.S. soil -- I mentally lumped it in with the other detention cases that involve Gitmo.) "A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face" of the Constitution and of American traditions, Scalia wrote.
I call that a smackdown of the Bush administration's position.
Thomas's was the only vote in that case that went entirely in favor of the Bush administration's assertion of Executive power.
It's a common popular myth that Thomas is "in Scalia's pocket" -- similar to the common popular myth that Thurgood Marshall was in Brennan's pocket. Funny that these myths both cast the black justice on the Court as a mindless drone always "in the pocket" of a more vocal white justice.
Thomas very much has a mind of his own. There's no more reason to say he's in Scalia's pocket than there is to say, for example, Breyer is in Souter's pocket. Thomas and Scalia are the two most conservative members of the Court -- so of course they vote together quite often.
But for an actual look at just how often they vote together, you can look for charts like this one:
http://www.scotusblog.com/movabletype/archives/UnanimousRemovedOT05.pdf
It examines the 2005 term, and shows that Thomas and Scalia were in full agreement 78% of the time that year. They were in disagreement 9% of the time. In other words, there were four cases in 2005 alone where Thomas and Scalia were split.
Supposing they split an average of four times each year -- after roughly 15 years on the Court together -- I would say that qualifies as splitting "numerous" times. No?
March 4, 2009 5:09 PM | Reply | Permalink
Ok, true that would qualify as splitting numerous times. The issue is that on most highly publicized opinions, and there are generally not many on an annual basis, thomas generally co-signs scalia's opinion. That's why there is the impression that thomas is in scalia's pocket. If thomas wrote the opinion and scalia cosigned then the impression would be that scalia was in thomas's pocket. Race has nothing to do with it.
I never had the impression that marshall was in brennan's pocket. They both wrote many opinions and co-signed each others opinions.
I'm not going to go through and analyze all the opinions, but I would wager a guess that the splits arise in the commercial types of cases primarily that don't get alot of publicity.
Incidentally, I would not call either of them conservative. I would call them reactionary.
March 4, 2009 5:31 PM | Reply | Permalink
No. Numerous means great in number, and in the context of probably greater than 650 cases, disagreeing 60 times would not be numerous. It would be more accurate to say that they disagreed occasionally, or even seldom. In the 2005 term you referenced, only Roberts and Alito disagreed at a lower rate (7%).
March 4, 2009 10:29 PM | Reply | Permalink