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Clarence Thomas confirms his belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms. And that that right is the only one, more generally, that we treat so cavalierly. [His words. Seriously.]

The Supreme Court said Monday that people convicted of domestic abuse can be prevented from owning a gun, in a case that prompted the first questions from Justice Clarence Thomas in 10 years.

In a 6-to-2 decision, the court said Congress had intended to keep firearms out of the hands of domestic abusers.

The question for the court was whether the gun ban applies to those convicted under state law of misdemeanor domestic abuse and specifically whether assault convictions for “reckless” conduct could trigger the prohibition. …

The case decided on Monday was brought by two men, including Stephen Voisine, who was separately being prosecuted for killing a bald eagle. He had a previous conviction for a misdemeanor assault of a woman with whom he had a relationship, and federal prosecutors said that meant he should be banned from owning firearms.

The court rejected that argument, finding Monday that “a person who assaults another recklessly uses force no less than one who carries out that same action knowingly or intentionally,” according to the majority opinion by Justice Elena Kagan. She was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr.

To accept the interpretation of the petitioners, the majority said, would risk striking down similar laws in 34 states and the District and allowing “domestic abusers of all mental states to evade” the firearms ban. …

In his dissent Monday, Thomas said the firearms ban should apply only to “intentional acts designed to cause harm” — not to those based on “mere recklessness,” which do not necessarily involve the use of physical force.

“The majority fails to explain why mere recklessness in creating force — as opposed to recklessness in causing harm with intentional force — is sufficient,” he wrote.

Thomas was joined in part in his dissent by Justice Sonia Sotomayor.

Separately, he also objected to the imposition of a lifetime firearms ban based on a misdemeanor assault conviction because of its implications for a person’s Second Amendment rights.

“This decision leaves the right to keep and bear arms up to the discretion of federal, state and local prosecutors,” Thomas wrote. “We treat no other constitutional right so cavalierly.”

Supreme Court: Domestic abusers can be banned from owning firearms, Ann E. Marimow, Washington Post, today

Actually, what Thomas meant by that last sentence is that we treat no other constitutional right so cavalierly that Thomas and his Federalist Society colleagues care about.  Ones that don’t concern gun ownership, or the unfettered freedom to buy elected officials, or to adopt a local or state, or the federal, government as your Christian pulpit.

Y’know; the constitutional rights that matter.  The ones that garner pro bono defense at the Court by some rightwing legal think tank whose name on a certiorari petition means the petition will actually be read by a justice or two, or three, or four.

And the ones whose certiorari petitioner can foot the $1,000 hourly billing fee totaling well into the six figures, to have the name of one of the tiny handful of Washington, D.C.-based Supreme Court “regulars’” name and law firm on the petition cover—the only other way to obtain actual review of your petition by an actual justice if you’re not represented in that petition by a non-government attorney (i.e., a state attorney general).  The petitioners who after paying those attorneys’ fees still have sufficient discretionary income to pay the $8,000 cost for the printing of the certiorari petition as per the extremely weird printing requirements that only three printing companies in the country can do.

Okay, well since the “regulars” get steep discounts at those printing companies, their clients will need considerably less than that full-freight price.  Which must be nice.

In any event, precious few others need apply.  Although nearly 10,000 others a year do.

Thomas’s veritable stock-in-trade is declaring something as fact that is clearly and facially false, often bizarre, sometimes downright comical.  He did that recently in what, happily, was, like this one, a dissent.  Thomas claims this time around that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

Well, maybe.  Then again, it could be that that is just the only one Thomas knows of, since the Court itself has aggressively blocked federal-court review of violations of most constitutional rights involving state and local prosecutors, state courts, and state criminal statutes in the name of state-courts’ rights to violate individuals’ constitutional rights, and since gun-ownership rights are pretty much the only rights that are at issue solely in non-white-collar-crime appeals.  And therefore the only criminal-law-related constitutional rights raised in certiorari petitions that he reads.

Which of course explains this one justice’s belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms.  And that that right is the only one, more generally, that we treat so cavalierly.

There are many thousands of Americans who could disabuse him of that belief.  Some of them have even filed certiorari petitions.

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ADDENDUM: Reader MIJ and I had the following exchange in the Comments thread:

MIJ

June 27, 2016 11:17 pm

Ok, I’m intrigued – not by Thomas who is predictably irrational, but by the way this vote went.
It appears Sotomayor joined the dissent “in part” while Alito abandoned his partner in the summer stock version of “Dumb and Dumber”.

There has to be a story here.

Me

June 28, 2016 10:50 am

Hi, Mark. This actually doesn’t surprise me. Thomas’s dissent is in three parts. The first two parts attack the majority’s claim that recklessness amounts to the “use of physical force” and “violence.” Those wo parts argue, in my opinion correctly, btw, that the terms “use of physical force” and “violence” denote only intentional conduct and therefore preclude recklessness. Thomas notes that even recklessness that causes a traffic accident is not considered “violence.”

The third part, the part that Sotomayer did not join, sings the praises of an absolutist Second Amendment.

The opinion and dissent are here.   (PDF required.)

Alito always—always—sides against the criminal defendant, in criminal cases and habeas cases, with the single exception of cases in which a key aspect (either the conduct of the defendant or the conduct of law enforcement) is something that he can imagine himself being entangled in. The only notable examples are Fourth Amendment cases in which Alito can imagine himself being victimized by an anything-goes nullification of the warrantless-search-and-seizure proscription.

Three or four years ago, Alito wrote an awesome opinion barring law enforcement from sticking a GPS tracker under your car. Alito of course parks his car in his home’s garage and in the Supreme Court’s employee garage, but presumably also, on occasion, in, say, a medical office parking lot or a shopping mall or restaurant one. Scalia, by contrast, apparently didn’t worry about such things; he dissented.

Then, two weeks ago, Alito joined the majority—Thomas dissented—in barring compulsory, warrantless blood tests for suspicion of DUI.  Slate’s Mark Joseph Stern wrote a terrific article there last week about the whiplash Fourth Amendment-cases effect, caused sometimes, as happened last week, when two Fourth Amendment opinions are issued within days of each other, this time first an appalling one, then the DUI one.  It’s here.

As for Sotomayor dissenting, she’s simply not willing to treat anything related to a narrow definition of domestic violence as per se passing muster simply because domestic violence issues are all the rage these days among progressives. Sotomayor, to her credit, in my opinion, recognizes that once you treat recklessness as intent and violence for purposes of domestic violence you probably will be asked to do so for other things as well. There are differences in law, normally, between recklessness and intent (e.g., manslaughter vs. murder), and it’s dangerous to start conflating the two.

Truth be told, I haven’t read the majority’s opinion, and I’m not sure how domestic violence even can be charged, absent intent. But apparently in this case, under a state statute, it was.

Added 6/28 at 11:35 a.m. 

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The appalling failure today of Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, John Roberts and Samuel Alito [Updated]

This speaks for itself.  I’m sure that Kennedy, Roberts and Alito call this ‘freedom’.  I won’t guess at what Sotomayor and Kagan call it.  But what Breyer calls it, or should, is conflict of interest.  Back when Breyer was lead counsel for the Senate Judiciary Committee, he helped draft the Federal Sentencing Guidelines—a really appalling policy—and has spent the remainder of his career serving as rear-guard protector of it.

Breyer makes me sick. Then again, so does Kagan (nothing new there) and now Sotomayor.

But let’s hear it for Ginsburg, Scalia and Thomas.

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UPDATE: Anyone who’s interested in this subject–and anyone who’s interested in the broader subject of an increasingly important chasm between rightwing libertarianism that is limited solely to taxes/economic-regulation/the-47% schtick and right-wing libertarianism that actually also considers the issue of denial of actual physical freedom to be within the definition of Freedom! Liberty!, presumably even when the denial of physical freedom is by a state or local government rather than by the federal gummint–should read this blog post on the rightwing-libertatian Cato Institute’s web site, about this “cert.” denial.

Of particular interest to me is the comment about Kagan’s decision (evident throughout her tenure on the Court) to be part of the “pragmatic” wing.  As the Cato post implies, Kagan has a pretty curious idea of “pragmatism.”

The case at issue, Jones v. United States, was a case prosecuted federal court and subject to the Federal Sentencing Guidelines.  But the ground on which cert. was sought was one under the Sixth Amendment, and a ruling finding the judicial practice at issue unconstitutional would have applied to state prosecutions as well as to federal ones.

10/16 at 12:25 p.m.

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.

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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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The Rightwing Supreme Court Justices’ Fair-Weather "State Sovereignty” Canard

Two days ago, Dan posted an entry by run75441 titled “SCOTUS Chastises Congress and the Executive Branch.”  The post’s title wasn’t quite accurate; run’s post was about Chief Justice John Roberts’ annual state-of-the-judicial-branch report, in which he was writing in his capacity as administrative head of that branch, not in his actual judicial capacity, and not for the other justices.

Run (who didn’t title the post; Dan did) deeply criticized Roberts for bragging about the austerity of the federal courts in recent years, including his own court, which, he also bragged, had decided on 64 cases in its last term.  That was down from, I think, 70 the term before, and the main reason for that reduction was that the ACA case consumed a full week of oral-argument slots– the full week at issue normally consisting of arguments in six–count ‘em, six!–cases; some full weeks consist of four arguments, leaving the justices slightly less exhausted than they are after the six-argument work weeks.

Roberts implied–he did not say so, expressly, but he did imply–that Congress and the White House take a cue from the justices and force the federal government to make do with less money.  To which I suggest that the justices really lead by example, and get rid of their four-justices-apiece law clerks, who do most of their work for them and start doing their legally-mandated jobs themselves.  After all, the federal government at least doesn’t pay salaries to congressional lobbyists–the equivalent of Supreme Court law clerks.

Anyway, I posted a comment to run’s post, and then asked Dan to add it as an update to run’s post, which he did.  My comment said:

The Supreme Court is rarely in session.  It’s seasonal, part-time work.  They usually hear argument in 10 cases a month, seven months a year.  In December, they didn’t hear even that many.
There’s really sooo much that can, and should, be said about the issue of (virtually universal lack of) access to the Supreme Court, and its repercussions.  Roberts’ bizarre, cutesy annual report is … oh … I don’t know …characteristically hubristic?

Run responded to my comment, and I then responded to his, writing:

What’s especially outrageous is the type of situation you’re talking about [a federal habeas corpus case challenging the constitutionality of aspects of the proceedings in a state-court criminal case]: The Supreme Court almost never agrees to hear cases on “direct appeal” (a legal term of art) from state supreme courts, in criminal or civil cases, with the major exception that they do often agree to do so in criminal cases when it is the state (i.e., the prosecution) that is asking them to hear hear the case in order to overrule a (rare) state supreme court ruling in favor of the criminal defendant. In state-court criminal cases, when it is the defendant who is asking the Supreme Court to hear the case in order to overturn a conviction, on constitutional grounds, the Supreme Court seems to figure that the criminal defendant can file a habeas corpus petition in a lower federal court.
Which they can, but the Supreme court has made that right an all-but-empty one–just a shell game, really–by interpreting a 1996 “jurisdictional” statute in a way that bars the lower federal courts from throwing out the state-court conviction on constitutional grounds in almost every case. With each passing Supreme Court term, the right to federal habeas review becomes even narrower, a seeming impossibility until it happens. In the last two years, the Supreme Court has treated that right as all but nonexistent. So the almost-total lack of access to the Supreme Court on direct appeal by state-court criminal defendants effectively removes access to constitutional review in federal court.
This is even truer in civil cases [including some that involve incredibly important, truly fundamental rights of the sort protected under international human rights laws, although they have nothing at all to do with, say, prison inmates; really–trust me on this], thanks to a set of perverse, gimmicky Supreme Court-created “jurisdictional” doctrines, which the Supreme Court has stood by and watched metastasize to remove any access to federal court in order to make a constitutional challenge, except for ExxonMobil, which asked the Supreme Court to limit the doctrine at issue, which the Court did, so narrowly as to apply in almost no other case, especially since the other, related doctrine actually bars access in the circumstance in which ExxonMobil was allowed to have it. (Sort of like Bush v. Gore.)
Anthony Kennedy, the leader of this state-courts-have-sovereignty-and-dignity! juggernaut, likes to say this is done in the name of liberty. (Isn’t everything the rightwing wants done in the name of liberty?!) Which reminds me of a political science class I once took on Maoism. [Maoism] included, basically, the routine use of Orwellian language, in which everything is the opposite of what its name or description indicates.
Of course, the current Supreme Court’s goal–the goal of the legal right since the early 1980s–is to turn the law into nothing but circuitous yellow-brick-road procedure: a dead-end labyrinth whose very purpose is its circuitry and fruitlessness. They’ve come incredibly close to succeeding.

There’s a whole lot more about this that can, and should, be said, and I plan to write in more depth about it.  Which will make me the only one writing for public consumption about it; the general news media covers only “substantive” legal issues (“substantive” being another legal term of art; legal issues are either “substantive” or “procedural.”)  And rarely covers even substantive issues that aren’t part of the culture wars debate.  Which is really nice for the legal right, because their justices and judges can, and do, do just about anything they want, completely under the radar.

But for now, I’ll just add that the judicial right, lead on this by Kennedy and Clarence Thomas, conflate state sovereignty with freedom, but, at least regarding those two and their wingy three colleagues and some (but not all of their lower-court compadres), do so only with respect (pun most definitely intended) to state courts.  To them, state legislative- and executive-branch actions (e.g., state statutes) are fair game for constitutional challenges, and they harbor no inhibition whatsoever about impinging upon state “sovereignty” in recognizing the Constitution’s Supremacy Clause when striking down as unconstitutional state statutes that the political right doesn’t care much for; Texas’s colleague-admissions affirmative action law, say.  (Sit tight for the upcoming oral argument there in that case.)  And their summary reversal of the Montana Supreme Court’s ruling late last year upholding the constitutionality of Montana’s longstanding campaign-finance statute is another example that comes (very) quickly to mind.  My mind, anyway.

To be fair to Kennedy, and certainly to his credit, he–and he alone, among the Fab Five–does extend this principle to state statutes that liberals don’t like.  Texas’s criminal anti-sodomy statute is one example, but there are other important ones as well.

But, in what appears to me to be nothing more than just old-fashioned professional courtesy, Kennedy effectively exempts state judicial branches from Supremacy Clause mandates to honor constitutional rights of individuals.  And state courts violate individual procedural and substantive rights, in criminal cases and in certain types of civil cases, with absolute abandon, comfortable in the knowledge that they can.  The result, far, far more often than not, is the very antithesis of freedom.  Except in the Matter Hatter-esque language that the legal right has found so useful.

So, next time Kennedy or Thomas writes an opinion singing the praises of state sovereignty–by which they almost always just mean state-court sovereignty–as advancing “freedom,” ask them (rhetorically, of course; they won’t actually hear you unless you retain Paul Clement to speak to them for you, which was basically run75441’s point) whether they think that, say, German Jews in the mid- and late 1930s were freer because Germany was a sovereign state.

I will, anyway.  Or maybe I’ll just ask the Mad Hatter. Orwell lives. These days, though, in this country it’s called “federalism.”

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Occasionally, one of my AB posts goes viral (relatively speaking), racking up a couple thousand views on statcounter.  This is one that I hope does.  Actually, I hope it gets a million hits.

Yeah. A million hits would be good.

Is there such a thing as hitting the Supreme Court in effigy?

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Clarence and Ginny Thomas, the Go-To Folks for Liberty

Lifted from an e-mail in reaction to two links
here and here I sent to Beverly Mann concerning Judge Clarence Thomas. (e-mail slightly revised for clarity)

by Beverly Mann

Clarence and Ginny Thomas, the Go-To Folks for Liberty

Hi Dan,

I’m obviously very supportive of the political goals of both of the organizations whose web sites you’ve pointed me to and asked my opinion about concerning their efforts against Clarence Thomas. But the petition demanding impeachment of Thomas for ruling in favor of Citizens United because in 1991 that organization sponsored television commercials urging Thomas’s confirmation by the Senate strikes me as ridiculous. And not just because the House, which would have initiate an impeachment process and then vote articles of impeachment, is in Republican control.

The problem with Thomas’s participation in the Citizens United case isn’t that the organization that filed the lawsuit challenging the constitutionality of some of the McCain-Feingold election-law restrictions happened to be Citizens United. Citizens United actually challenged a regulation in that law that had nothing to do with campaign contributions. It was the Court itself (the five-member majority, obviously) that reached out on its own to address the constitutionality of the restrictions on corporate campaign contributions.

The problem is that Koch Industries, the most prolific and pervasive of corporate campaign contributors in federal and state election campaigns, and the Koch brothers, were huge players in this controversy. The purpose of the Koch campaign contributions is to affect the outcome of elections in order to affect enactment, repeal or enforcement of a vast array of environmental laws and regulations that impact their immense oil, gas, manufacturing, ranching, finance and commodities trading businesses. (I got those listings from Wikipedia.) Scalia and Thomas attended and spoke at Koch-sponsored four-day law conferences at luxury resorts. Their expenses were paid by the rightwing bar group, the Federalist Society, which receives substantial donations from Koch Industries and which may have actually received dedicated funds for those expenses from Koch Industries. If so, Scalia and Thomas may not have known of this.

In any event, the decision by these two to participate in the Citizens United decision is not an impeachable offense. What might be an impeachable offense, in my opinion, is Thomas’ failure to comply the disclosure statute; he lied on his disclosure statement, for at least six years, in what I think is a significant respect. As I wrote last week, that may violate a criminal statute, although that is not my area of expertise and I don’t know whether it does or not. And if it does, I hope he is eventually prosecuted for it.

The information that Thomas withheld was that his wife was paid a very substantial amount of money during those six years by rightwing interests. Comments he made in a speech at a Federalist Society function last weekend hint, if I understand the comments correctly, that he withheld that information in contravention of federal statute as part of what he considers his and his wife’s crusade for Liberty in the name of the Constitution, and that he believes—and he made this clear in that speech, as the speech was reported—that he and his wife are the True Arbiters of the meaning of that word as the Constitution intends it; no one else need apply. They are the liberty messiahs, so they are entitled to violate the law, and certainly ethics codes, in the service of their holy mission. And make no mistake. This is a holy mission.

Here are quotes from a Politico story about the speech:

Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”
He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.
“You all are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties,” he said, according to a partial recording of the speech provided to POLITICO by someone who was at the meeting.
“And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.” …

At one point Thomas recognized his wife in the audience and suggested she was being targeted for her beliefs, telling the audience, according to the recording, “my bride is with me, Virginia Thomas. And some of you may know her. But the reason I bring that – specifically bring it – up is there is a price to pay today for standing in defense of your Constitution.”

Thomas said his wife “started her organization to give 24/7 every day in defense of liberty,” and said he shared her principles.

Yes, that’s right. Thomas thinks it’s his critics who seem bent on undermining the Court as an institution and that could erode the ability of American citizens to fend off threats to their way of life.

Beverly maintains her own blog The Annarborist

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