One of the most amazing things for SCOTUS watchers to see over the last year has been the slow realization about Clarence Thomas. For conservative Court watchers, it’s been obvious for some time that Thomas is a capable and influential jurist. His dissent in the Raich medical marijuana decision, where he disagreed with Scalia, was excellent.
If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”
That’s good federalism, friends. But the Left, because he was a black conservative, continued to insist that he was a “lawn jockey” and Scalia’s hand puppet.
Earlier this year, Jeffrey Toobin came to the sudden realization about Thomas’ substantial body of work. And now, on the 20th Anniversary of his appointment, people are talking about his record, which shows a disregard for stare decisis, even to the point of — gasp! — occasionally supporting liberal ideas because … that’s what’s in the Constitution:
Based on his reading of the Commerce Clause, for example, he unsuccessfully urged his brethren to strike down most of the federal drug laws—which made him an unlikely hero in my hometown of Berkeley, Calif., if only for a day. He joined a majority to invalidate thousands of criminal sentences because judges, instead of juries, had found the vital facts—in violation of the Bill of Rights.
This refers to the Feds’ repulsive attempt to get judges to tack 25 years onto convictions when guns were used during a crime — a finding not made by a jury but determined from the bench.
Justice Thomas opposed the court’s pro-business decisions that capped punitive damages because he believes the issue is for the state courts to decide. He voted to suppress evidence produced by police using thermal-imaging technology to scan homes for marijuana growth as unreasonable searches in violation of the Fourth Amendment. Because the Framers wanted broad protections for political speech, Justice Thomas joined opinions protecting violent movies and offensive protesters at military funerals.
None of this is a surprise to those of us who took Clarence Thomas seriously from day one. But it’s nice to see everyone else figuring it out.