Clarence Thomas on Government Reform

Supreme Court Justice (nominated by Pres. Bush Sr. 1991)


Executive privilege applies to Trump's Jan. 6 documents

On the DC Circuit, Ketanji Brown Jackson was been involved in one high-profile case: Trump's efforts to block the release of documents related to the Jan. 6 2021 riot at the US Capitol. The special House of Representatives committee investigating the riot asked the National Archives to turn over presidential records relating to the events of Jan. 6 & Trump's claims of election fraud in the 2020 presidential election.

When the archivist notified Trump that he would turn over records, Trump claimed executive privilege over some of the documents, including diaries, schedules, and visitor and call logs. But Biden countered that the documents should not be shielded by executive privilege, prompting Trump to go to court. The D.C. Circuit, in an opinion that Jackson joined, upheld that ruling. Trump then went to the Supreme Court, which on Jan. 19 turned down Trump's request to stop the release of the documents. Only Justice Clarence Thomas indicated that he disagreed with the court's decision.

Source: ScotusBlog.com on SCOTUS confirmation hearings , Feb 1, 2022

AZ mail-in restrictions don't violate Voting Rights Act

Arizona voting restrictions challenged as violations of Section 2 of the Voting Rights Act. First, voters casting their votes on Election Day outside their precinct are not counted. Second, mail-in ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter's family or household member. The court held, 6-3, that these restrictions did not violate the Act nor were they racially discriminatory.

Dissenters argued that the Court's narrow reading weakened the law and disregarded its intent to address disparities in how election laws affect different racial groups. The rule discarding "out of precinct votes" impacted black and Hispanic voters, with Arizona leading the country in discarding such votes. Restrictions on vote collection makes voting more difficult for Native Americans.

Samuel Alito wrote the opinion of the Court. John Roberts, Neil Gorsuch, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett concurred.

Source: NPR commentary on 2021 SCOTUS rulings , Jul 1, 2021

No curbside voting during pandemic; keep existing rules

The U.S. Supreme Court in a 5-4 decision blocked a lower court ruling allowing curbside voting in Alabama and waiving some absentee ballot requirements during the COVID-19 pandemic. Conservative justices granted Alabama's request to stay a federal judge's order that would allow local officials to offer curbside voting in the July runoff and loosen absentee ballot requirements in three of the state's large counties.

"Alabama is again able to enforce laws that help ensure the fairness and integrity of our elections," Alabama's Republican Attorney General said. A District Judge issued a preliminary injunction after finding that Alabama's election rules will cause sick or elderly voters to "likely face a painful and difficult choice between exercising their right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections." Alabama appealed the decision. The state argued that it would be confusing to change absentee ballot rules.

Source: Time magazine: Concurrence on MERRILL v ALABAMA, No. 19A1063 , Jul 3, 2020

Federal control over state voting is unconstitutional

In Shelby County v. Holder, the Supreme Court struck down the section of the Voting Rights Act which established a formula for determining if a state requires prior approval before changing its voting laws. Nine states with a history of discrimination must still get clearance from Congress before changing voting rules to make sure racial minorities are not negatively affected--this section was made toothless. Chief Justice Roberts said the formula Congress now uses, which was written in 1965, has become outdated. Justice Ginsburg, dissenting, said, "Hubris is a fit word for today's demolition of the VRA."

OnTheIssues explanation: This ruling led to a spate of "Voter ID" laws, which proponents claim is needed to protect the integrity of the vote, and which opponents say discriminates against youth & minority voters.

Opinions:Majority: Roberts, Scalia, Kennedy, & Alito; concurrence: Thomas; dissent: Ginsburg, Breyer, Sotomayor, & Kagan.

Source: InfoPlease.com on 2013 SCOTUS docket #12-96 , Jun 25, 2013

Regulating commerce does not encompass 50 states' laws

The Court today properly concludes that the Commerce Clause does not grant Congress the authority to prohibit gun possession within 1,000 feet of a school, as it attempted to do in the Gun Free School Zones Act of 1990.

It seems to me that the power to regulate "commerce" can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress regulate such matters is in need of reexamination.

In an appropriate case, I believe that we must further reconsider our "substantial effects" test with an eye toward constructing a standard that reflects the text and history of the Commerce Clause without totally rejecting our more recent Commerce Clause jurisprudence.

Source: 1995 SCOTUS:US v. Lopez in Freedom Agenda, by M.Lee, p.186-8 , Jul 18, 2011

If Congress could regulate all commerce, why enumerate?

Congress has the authority to enact such laws as are "necessary and proper" to carry into execution its power to regulate commerce. But on this Court's understanding of congressional power [in the Lopez case], many of Congress' other enumerated powers are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, or coin money. It might not even need the power to raise and support an Army and Navy, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease.

Put simply, much if not all of Article 1 Section 8 would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation that makes Artilcle 1 Section 8 superfluous cannot be correct.

Source: 1995 SCOTUS:US v. Lopez in Freedom Agenda, by M.Lee, p.191-2 , Jul 18, 2011

1980: Voted for Reagan & against ever-larger government

In the fall of 1980, I changed my voter registration from Missouri to Maryland--and registered as a Republican. I had decided to vote for Ronald Reagan. It was a giant step for a black man, but I believed it to be a logical one. I saw no good coming from an ever-larger government that meddled, with incompetence if not mendacity, in the lives of citizens, and I was particularly distressed by the Democratic Party's ceaseless promises to legislate the problems of blacks out of existence. Their misguided efforts had already done great harm to my people, and I felt sure that anything else they did would compound the damage. Reagan, by contrast, was promising to get government off our backs and out of our lives, putting an end to the indiscriminate social engineering of the sixties and seventies.
Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.130 , Oct 1, 2007

Judge's role is to interpret law, not to make policy choices

I was informed that I would be confirmed for the Court of Appeals, but that I could expect things to be very different if I were to be nominated to the Supreme Court. Despite their grilling, and the months of preparation that had led up to it, the actual hearings proved to be uneventful. The questioning proceeded fairly briskly. By the end of the day, it was over and done with.

As I reflected on the long, unpleasant process that had led up to this brief public performance, I was struck by how easy it had become for sanctimonious whites to accuse a black man of not caring about civil rights.

Given my initial ambivalence about becoming a judge, I was surprised to find that I liked the job. Part of what made it so agreeable was that I got along so well with most of my new colleagues.

"What is my role, in this case--as a judge?" The role of a judge is to interpret and apply the choices made in the legislative and executive branches. Not to make policy choices of his own.

Source: My Grandfather's Son: A Memoir by Clarence Thomas, p.201-204 , Oct 1, 2007

Opposed the Voting Rights Act & affirmative action

Bush wanted credit in the history books for appointing a black justice to the Supreme Court, but he needed to find a conservative who was against abortion to satisfy the demands of right-wing Republicans. Still, the President knew he was in for a confirmation fight when he proposed an inexperienced jurist for the highest court, because when he was confirmed as a federal judge, many senators said they would not confirm him for the Supreme Court. Clarence Thomas opposed affirmative action, the Voting Rights Act, and abortion, but Bush figured that Thomas's race would weigh heavily in his favor and stave off the opposition of civil rights groups. It almost worked.

The National Urban League withheld its opposition, but the board of directors of the NAACP voted 49-1 to oppose; the AFL-CIO Executive Council voted 35-0 to oppose; the NOW officers and convention delegates voted unanimously to oppose; and the black National Bar Association voted to oppose.

Source: The Family, by Kitty Kelley, p.512-513 , Sep 14, 2004

Candidates' political speech is at core of First Amendment

In 2000, in Nixon v. Shrink Missouri PAC, [Zev Fredman, a marginal candidate for statewide office, assailed Missouri's contribution limits]. For their parts, Justices Thomas & Scalia would restore the law to its libertarian, pre-Buckley condition. [In 1976 in Buckley v. Valeo the Court rules that contributions could be limited, but expenditures could not.] Political speech, they said, is at the core of 1st Amendment concern. The Buckley incursion into the most important arena of free speech had created a "most curious anomaly." Turning to Fredman's candidacy, the dissenters noted his compelling need for large donations. Fredman lacked the advantages of incumbency, name recognition, or personal wealth. He had "managed to attract the support of a relatively small number of dedicated supporters," but their potential support would be a crime under Missouri law. The upshot: The state prevented Fredman's message from reaching the voters. This was emphatically wrong under the First Amendment.
Source: First Among Equals, by Kenneth Starr, p. 87 , Oct 10, 2002

Limited role for courts; narrow Constitional interpretation

The nine court members can be divided into three general alliances, but all of the justices have crossed ideological lines. The three conservative justices, including Thomas, and two of the swing justices usually support states’ rights.

Thomas, sees limited role for the court; reads constitutional guarantees narrowly.

Source: Reuters article in Boston Globe, p. A45 , Dec 1, 2000

Judges should not impose their will, but just interpret law

SENATOR THURMOND: Would you please describe your views on judicial activism?

JUDGE THOMAS: The role of a judge is a limited one. It is to interpret the intent of Congress, the legislation of Congress, to apply that in specific cases, and to interpret the Constitution, where called upon, but at no point to impose his or her will or his or her opinion in that process, but, rather, to go to the traditional tools of constitutional interpretation or adjudication, as well as to statutory construction.

Source: 1991 SCOTUS Senate Confirmation Hearings , Sep 10, 1991

Corporate political spending is free speech.

Justice Thomas joined the concurrence on Citizens United v. Federal Election Commission on Jan 21, 2010:

Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative 90-minute documentary entitled Hillary: The Movie. This documentary covers Hillary Clinton's record while in the Senate & the White House. However, The Movie falls within the definition of "electioneering communications" under the Bipartisan Campaign Reform Act of 2002 ("BCRA")--a federal enactment designed to prevent "big money" from unfairly influencing federal elections--which, among other things, prohibits corporate financing of electioneering communications. The FEC [enforced the provision] of BCRA prohibiting corporations from broadcasting electioneering communications within 60 days of a general election. [The Supreme Court rules that this] violates the free speech clause of the First Amendment.

Justice Kennedy , Opinion of the Court (Roberts, Scalia, Alito, and Thomas concurring):

Some members of the public might consider "Hillary: The Movie" to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation's course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make.

Justice Stevens (dissent joined by Ginsburg , Breyer, and Sotomayor)

Neither Citizens United's nor any other corporation's speech has been "banned." All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment [allows that] is, in my judgment, profoundly misguided. Although I concur in the Court's decision to sustain BCRA's disclosure provisions, I emphatically dissent from its principal holding.

Source: Supreme Court case 08_CU_FEC argued on Mar 24, 2009

Public campaign finance can't be based on opponent spending.

Justice Thomas joined the Court's decision on AZ FREEDOM CLUB PAC v. BENNETT on Jun 27, 2011:

An Arizona public campaign financing law allowed a person who agreed to the restrictions of a publicly financed campaign to receive an initial allotment from the state. That initial allotment was increased when the spending of a privately financed opponent together with the spending of any independent group exceeded that initial allotment. The public funds to match opponent expenditures topped out at two times the initial allotment.

HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas & Alito

Arizona's public financing law places a burden on privately financed candidates. If privately financed candidates spend money above a certain level, they necessarily entitle their publicly financed opponents to greater funding. Their First Amendment right to free speech in a political matter--which includes spending money on their campaigns--is inhibited. Independent groups do not qualify for public financing at all, but their spending still may lead to a funding increase for the candidates the independent groups oppose. Leveling the playing is not a compelling state interest justifying a burden on a First Amendment right, nor is combating corruption. Arizona would be free to give the maximum amount to all public candidates, but that does not justify inhibiting the free speech of candidates and independent groups.

DISSENT: Kagan dissents; joined by Ginsburg, Breyer, and Sotomayor

The First Amendment's core purpose is to foster a political system full of robust discussion and debate. Arizona's public campaign finance did not restrict speech, it increased speech through public subsidy with the goal of decreasing the corruption of both quid pro quo campaign payments made in exchange for official acts or an office seeker feeling beholden to his great financial supporters. Any burden on free speech, the burden could hardly be more substantial than what the Court announces would be legal: a larger, up-front allotment to a public candida
Source: Supreme Court case 11-AZ-PAC argued on Mar 28, 2011

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Other Justices on Government Reform: Clarence Thomas on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022