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July 26, 2007

Thomas Charts a Jurisprudence All His Own

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

That passage, from a landmark 1969 decision which held that students had a First Amendment right to wear black armbands to school in protest of the Vietnam War, is one of the most famous lines in the last 40 years of Supreme Court jurisprudence.

This year, when the Supreme Court decided its first student speech case in nearly two decades, Justice Clarence Thomas, in a bold yet little-noticed concurring opinion, rejected the proposition entirely.

"In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools," Thomas wrote.

None of the other eight justices questioned the court's ruling 28 years ago, in Tinker v. Des Moines Independent Community School District, that students retain speech rights at school.

Instead, they divided along ideological lines over whether those rights should extend to school speech that promotes illegal drug use, with the court's conservative majority ruling that a student banner proclaiming "Bong Hits 4 Jesus" was not protected. Morse v. Frederick, 2007 DJDAR 9448.

The press and the public largely focused on the main debate and made little mention of Thomas' solitary and unconventional position.

His concurrence was one of several curve balls the justice has thrown the court since Chief Justice John Roberts and Justice Samuel Alito joined the bench: Amid the hoopla over the new-look Supreme Court, Thomas has quietly continued to chart a provocative and often-controversial path all his own.

"There's certainly going to be some segment of the legal academy that's going to dismiss him as extreme, but there are others, even some liberals, who say, 'This Thomas guy is original, intelligent and makes us think twice,'" said University of Minnesota law professor David Stras, a recent Thomas law clerk.

Duke University law professor Erwin Chemerinsky, however, said Thomas' reputation as extreme is well deserved.

"I find the Clarence Thomas' vision of the Constitution an incredibly scary one," Chemerinsky said. "He's charting a course further to the right than anyone else, and that's on a conservative court."

In the school speech case, Thomas offered a 13-page abbreviated history of U.S. public education in the style of CliffsNotes study guides, one which he said made clear that students traditionally enjoyed no speech protections.

In support of his position, Thomas cited an array of texts that only a graduate student could love, including: "The Emergence of the Common School in the U.S. Countryside," "From Apron Strings to ABCs: Parents, Children and Schooling in Nineteenth-Century Massachusetts" and the 1843 classic "The School and the Schoolmaster: A Manual."

"In the earliest public schools, teachers taught, and students listened," Thomas wrote.

Stras said Thomas' frequent historical explorations are a product of his central focus on what a legal provision meant at the time it was enacted.

"It may seem obscure that he goes into all of that, but to him it's the essential part of what he's deciding," Stras said. "It's amazing that he comes up with this stuff, but he does."

Stanford University law professor Pamela Karlan said Thomas' position in the case ran counter to how most people would view the right of free speech.

"It just strikes me as completely foreign to what Americans have come to understand the First Amendment to mean," Karlan said.

As in the student speech case, Thomas' solo writings often are spurred by his belief that high court precedent should be overturned - something that the other justices are much more hesitant to advocate.

"He does not believe in stare decisis, period," Justice Antonin Scalia said of Thomas' willingness to overrule precedent in Ken Foskett's 2004 book, "Judging Thomas."

"If a constitutional line of authority is wrong, he would say let's get it right," Scalia said. "I wouldn't do that."

Thomas took just that approach in an April decision upholding a trash disposal law in New York. The law forced trash haulers to drive waste to local processing facilities instead of taking it out of state, where they could dump it more cheaply. United Haulers Assn. v. Oneida-Herkimer Solid Waste Management Authority, 2007 DJDAR 5958.

While siding with the majority, Thomas wrote separately to argue that the court should rid itself of more than 100 years of jurisprudence that enforced the so-called "negative" Commerce Clause, which bars states and localities from passing regulations that burden interstate commerce.

"The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice," he wrote.

When Congress has not explicitly chosen to restrict state regulations, he said, states should be free to regulate commerce as they wish.

"That would mean that states could adopt any kind of protectionist law favoring in-state businesses unless Congress passed a statute stopping it, no matter how much of a burden it placed on interstate commerce," said Duke's Chemerinsky.

The Commerce Clause also was the subject of one of Thomas' more fascinating concurring opinions of the term, which he penned in one of the year's biggest cases, Gonzales v. Carhart, 2007 DJDAR 5189, examining the constitutionality of the federal Partial-Birth Abortion Ban Act.

The court's conservative wing upheld the federal abortion law on a 5-4 vote, but Thomas, this time joined by Scalia, wrote a separate opinion noting that the abortion-rights plaintiffs in the case did not question "whether the act constitutes a permissible exercise of Congress' power under the Commerce Clause."

That teaser of a passage left open the possibility that Thomas, a states-rights advocate who believes in limited federal authority, might have voted to strike down the law if only the challengers had questioned whether Congress had legal authority to enact abortion regulations.

Roger Pilon of the Cato Institute, a libertarian think tank, said the issue Thomas raised presented a strategic quandary for both sides and created paradoxes all around.

"Abortion-rights people who normally wouldn't touch an enumerated powers argument with a 10-foot pole are inclined to say that Congress has no authority to regulate abortion," Pilon said. "Anti-abortion people, who tend to subscribe to limited congressional power, are calling upon Congress to legislate when they would otherwise see no such power."

Thomas also used his abortion opinion to reiterate his belief that Roe v. Wade, the landmark decision recognizing abortion rights, was wrongly decided.

In many of his solo writings, Thomas continues to make arguments that leave his liberal detractors howling.

In the immigration case Lopez v. Gonzales, 2006 DJDAR 15787, Thomas was the lone dissenter who believed that a permanent resident convicted in state court for simple drug possession should face the same severe deportation penalties that apply to aliens who are convicted of drug trafficking.

The immigrant's drug offense, committed in South Dakota, was a felony under state law, though it would have been just a misdemeanor under federal law.

The other justices ruled that a state drug offense had to be the equivalent of a federal felony for an immigrant to face harsh deportation sanctions.

In Erickson v. Pardus, 2007 DJDAR 8015, Thomas dissented from a decision allowing a Colorado prisoner to proceed with a lawsuit alleging that prison officials violated the Eight Amendment's ban on cruel and unusual punishment by stopping the inmate's medical treatment for hepatitis.

Corrections officials suspected that the inmate planned to use a prison-provided syringe to inject himself with illegal drugs instead of hepatitis medication.

The inmate, who denied the charge, said the lack of treatment could cause irreversible damage to his liver.

Thomas, after first lodging an objection to the court's Eighth Amendment jurisprudence, said that even in applying the relevant case law, a prisoner should be able to sue only over "actual, serious injuries" and not for the "exposure to the risk of injury."

In other cases, however, Thomas' recent opinions haven't always cut in favor of what might be considered the conservative position. That's especially true in business cases.

In Credit Suisse Securities v. Billing, 2007 DJDAR 8877, Thomas was the only justice who would have allowed antitrust plaintiffs to proceed with a lawsuit alleging that the nation's leading investment banks conspired to rig the prices of initial stock offerings for hundreds of technology companies during the dot-com boom.

In last year's Anza v. Ideal Steel Supply, 126 S. Ct. 2016, Thomas alone criticized the court for placing new limits on the type of civil lawsuits that could be brought under the federal racketeering statute.

And in a closely watched smoker's lawsuit this year against Philip Morris, Thomas reiterated his belief that the Constitution does not constrain the size of punitive damages awards. Philip Morris v. Williams, 2007 DJDAR 2233.

"He's not monolithically pro-business," said Mark I. Levy of Kilpatrick Stockton in Washington, D.C. "In some respects, he's not as good for business as Sandra Day O'Connor was."

"He goes wherever his jurisprudence takes him," Levy said.

While some of Thomas' writings fly under the radar, one of his most visible opinions during the two years of the Roberts Court came last month when a 5-4 court struck down two voluntary school integration programs that used race to determine which students were given seats in certain classrooms. Parents Involved in Community Schools v. Seattle School District No. 1, 2007 DJDAR 9798.

Thomas, whose views on race garner particular attention because he is the court's only black justice, weighed in with a 36-page concurring opinion that questioned whether integration in the school setting was as valuable as the court's liberal dissenters believed it to be.

"It is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement," Thomas wrote.

He also accused the court's liberal wing of adopting a mindset not all that different from past segregationists.

"Indeed," Thomas wrote, "if our history has taught us anything, it has taught us to beware of elites bearing racial theories."