Judges and Judiciary
Aug. 6, 2005
Thomas, Unbridled, Would Gut 200 Years of Precedent
Forum Column - By Erwin Chemerinsky - One of the overlooked, important themes of the U.S. Supreme Court's October 2004 term, which ended June 27, was the radicalism of Justice Clarence Thomas. In case after case, Thomas took a position shared by no other justice and advocated a dramatic change in long-established constitutional doctrines.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
One of the overlooked, important themes of the U.S. Supreme Court's October 2004 term, which ended June 27, was the radicalism of Justice Clarence Thomas. In case after case, Thomas took a position shared by no other justice and advocated a dramatic change in long-established constitutional doctrines.
As the Senate Judiciary Committee members prepare for the early September hearings on the confirmation of John G. Roberts, it will be important for them to consider whether Roberts will be a mainstream conservative in the mold of Sandra Day O'Connor or another vote for Thomas' more-extreme views.
Thomas had articulated many of these positions in previous years, but there has not been a term in which he went out of his way to urge significant changes in the law in so many areas. For example, in the decisions concerning the constitutionality of Ten Commandments displays on government property, Thomas wrote a separate opinion in which he argued that the provision of the First Amendment, which prohibits laws "respecting the establishment of religion," should not apply to state and local governments at all. See Van Orden v. Perry, 125 S.Ct. 2854 (2005).
Thomas believes that the Establishment Clause was meant solely to keep the federal government from creating churches that would rival existing state churches.
Sixty years ago, the Supreme Court unanimously held that the Establishment Clause, like almost all of the other provisions in the Bill of Rights, applies to state and local governments. Everson v. Board of Education, 330 U.S. 1 (1947). Thomas is the only justice in all of this time to disagree.
On several occasions in recent years, Thomas has urged the court to overrule Everson and hold that the Establishment Clause does not apply to state and local governments. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
From this perspective, a state could declare itself to have an official religion. Utah could deem itself to be a Mormon state or Georgia a Baptist one. A cross could be placed atop a state capitol or a city hall. Schools could institute official prayer and Bible reading in their schools and give unlimited aid to parochial schools.
Another area in which Thomas would revamp the law totally is Congress' power to regulate commerce among the states. For 70 years, the Supreme Court has held that Congress can regulate activities that have a substantial effect on interstate commerce. Even recent decisions limiting the scope of the Commerce Clause have reaffirmed this. See U.S. v. Morrison, 529 U.S. 598 (2000); U.S. v. Lopez, 514 U.S. 549 (1995).
But in his dissent in a case involving the ability of the federal government to prohibit private cultivation and possession of marijuana for medicinal purposes, Thomas argued that Congress should not have this power and that Congress' authority should be limited to regulating economic transactions. Gonzales v. Raich, 125 S.Ct. 2195 (2005).
No other justice has gone this far to limit federal power. If this position ever attracted support from a majority of the court, thousands of federal laws, ranging from all federal environmental laws to most federal criminal laws to many civil rights laws, would be declared unconstitutional. All of these statutes are based on Congress' authority to regulate activities that have a substantial effect on interstate commerce.
Thomas also urges another change in the law of the Commerce Clause: He would eliminate any judicially enforced restriction on the ability of state and local governments to adopt protectionist legislation burdening interstate commerce. Since early in the 19th century, the Supreme Court has held that state and local laws are unconstitutional if they place an excessive burden on interstate commerce. The so-called "dormant Commerce Clause" places a crucial limit on the ability of state and local governments to enact protectionist legislation helping in-staters at the expense of out-of-staters.
This year, for example, the court applied this principle to declare unconstitutional Michigan and New York laws that allowed in-state but not out-of-state wineries to ship directly to consumers. Granholm v. Heald, 125 S.Ct. 1885 (2005).
Thomas dissented and argued against such a limit on state and local governments. Under the Thomas view, any form of protectionist legislation would be permissible unless disapproved by Congress. A 200-year-old constitutional doctrine would be discarded.
Yet another case in which Thomas wrote a dissent urging a change in the law concerns the ability of the government to take private property for public use. For decades, the Supreme Court has held that a taking is for "public" use, so long as the government acts out of a reasonable belief that the taking would benefit the public. Thus in Berman v. Parker, 348 U.S. 26 (1954), the court held that the government could take blighted property to provide for its restoration and development.
In Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), the court ruled that the state of Hawaii could take property from private owners, pay them just compensation and distribute ownership among a larger group of people. The court concluded that the taking was for "public use" because Hawaii was acting out of a reasonable belief that distributing ownership among a large number of people would benefit the public. In its recent decision in Kelo v. City of New London, 125 S.Ct. 2655 (2005), the court followed these precedents and held that a taking was for public use when the property was to be used for an economic development likely to create a thousand new jobs.
But Thomas wrote a dissenting opinion stating that he would overrule these decades of precedents and allow the government to take private property only if it would be used by the government. The power of local governments to make land-use decisions would be curtailed drastically by this radical change in the law.
These are examples from just the last few months. In earlier years, Thomas has urged many other dramatic changes in the law. His view is that the Constitution's prohibition of cruel and unusual punishments does not limit the severity of sentences, that even the most drastic of penalties can be imposed for the most minor of crimes. See Ewing v. California, 538 U.S. 11 (2003). He repeatedly has said that he believes that the Constitution does not protect privacy and that he thus would overrule decisions protecting access to contraceptives, the right to abortion and the right to engage in private consensual homosexual activities. See Stenberg v. Carhart, 530 U.S. 914 (2000); Troxel v. Granville, 530 U.S. 57 (2000).
Individually, each of these areas is significant, but cumulatively they reveal how dramatically Thomas wants to change the law and how little respect he has for precedent. Roberts should be asked whether he shares Thomas' views in these areas.
Indeed, the central question at Roberts' confirmation hearings must be whether he will be a conservative like O'Connor -or like Thomas. Understanding Thomas' views, even by focusing on the opinions just from this term, shows how radically Thomas wants to change constitutional law.
Erwin Chemerinsky is Alston & Bird Professor of Law at Duke Law School.
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