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Posted by on Apr 4, 2014 in Law | 4 comments

The Clarence Thomas Court?


He may be considered as silent on the court as “Silent Cal” Calvin Coolidge was by legend (not so much in reality) as President, but is what we’re really seeing now The Clarence Thomas Supreme Court? The Hill asks that question –– and makes a good case that we are indeed seeing just that:

Justice Clarence Thomas’s influence was on full display in the Supreme Court’s landmark decision to strike down a crucial campaign finance restriction.

And it’s just one in a string of cases in which Thomas could be dragging the court toward his way of thinking.

Chief Justice John Roberts penned Wednesday’s plurality decision, which eliminates the limit on the total dollar amount an individual may give to political candidates and committees.

But Thomas, seen by many as the court’s most conservative justice, wrote a concurring opinion that both represented the decisive vote in the 5-4 decision and beckoned the justices to go further.

Thomas used his opinion to argue in favor of scrapping individual contribution caps altogether by reversing the court’s post-Watergate decision known as Buckley v. Valeo, which held that limits are justified as a measure to stave off corruption.

And if you couple that with the Republican Party’s seeming fervor to repudiate some of the reforms Teddy Roosevelt did at the start of the last century, it’s a case of legislation and court rulings to set the clock back.

“This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment,” Thomas wrote. “Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design.”

Thomas is the only Justice calling for the total elimination of individual contribution caps so far, but Wednesday’s ruling in McCutcheon vs. the FEC could give him hope that the court’s majority will eventually reach his conclusion.

It’s familiar terrain for Thomas, who experts said has often staked positions outside of the mainstream, even of the court’s conservative wing, during more than two decades on the bench.

“He is not one for half-measures,” said Tom Goldstein, an appellate advocate who has argued dozens of cases before the Supreme Court. “He, on more questions than most justices, he is willing to stake out the strongest position.”

For Thomas, that has often meant standing alone. But there have been cases — on Second Amendment and criminal justice issues, for instance — where Thomas started out alone in dissent, only to watch the court “cohere around that once lonely position,” Yale law professor Akhil Reed Amar said.

It’s a trend….and the trend towards the court being The Thomas Court is likely to continue.

Thomas famously remains silent during oral arguments before the court, as other justices spar and pepper the attorneys before them with questions. Amar, who described himself as a liberal admirer of Thomas, scoffed at suggestions that he takes his cues from the court’s other conservatives or cedes any of the power that comes with his robe.

“You could make a case that he’s been the most influential,” he said. “The game isn’t talking at oral arguments.”

The game is moving the court. And guess who seems to be moving it?