Here.
Justice Thomas Asked Questions in Oral Argument Today
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Justice Thomas
Ralph Rossum on Justice Thomas’ Views of the Three Commerce Clauses
Ralph A. Rossum (author of the definitive legal history of California v. Cabazon Band) has posted his paper, “Clarence Thomas’s Originalist Understanding of the Interstate, Negative, and Indian Commerce Clauses,” on SSRN. It is available in the University of Detroit Mercy Law Review. (Hat tip)
Here is the abstract:
During his twenty years on the Supreme Court, Justice Clarence Thomas has pursued an original understanding approach to constitutional interpretation. He has been unswayed by the claims of precedent — by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. Like too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent — focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means — hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the Justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood — to the original understanding of the Constitution.
In what follows, Section I describes Thomas’s originalism and contrasts it with Antonin Scalia’s different kind of originalism. Section II explores Thomas’s originalist understanding of the limits of Congress’s power under the Interstate Commerce Clause. Section III focuses on Thomas’s rejection of the Court’s claim of power to invalidate state laws burdening interstate commerce under the negative Commerce Clause on originalist grounds. Section IV addresses Thomas’s rejection of the view that the Indian Commerce Clause gives the Congress plenary power in Indian country and his call in United States v. Lara for the Court to “examine more critically our tribal sovereignty case law.” Section V concludes.
I think Prof. Rossum is spot on when it comes to the Indian Commerce Clause, especially in terms of his excellent description of how the First Congress passed a whole series of statutes involving Indian affairs culminating in the first Trade and Intercourse Act.
Justice Thomas’ Indian Law Vision
Much is being made of Justice Thomas as a rising leader in the Roberts Court, which quietly says a great deal about the incredible conservatism of the Court right now. Justice Thomas views on gun control, which former Chief Justice Burger would have labeled “fraudulent,” are now the law. Jefffrey Toobin’s New Yorker piece, profiled at SBM blog, notes that Thomas’s dissenting and concurring opinions long have espoused well-nigh radical notions of constitutional law, and are now being vindicated one after the other.
Justice Thomas’s radical vision of the law also has touched Indian law. In particular, Thomas has suggested two major changes to Indian law jurisprudence.
First, in White Mountain Apache, he wrote that the trust relationship was more properly viewed as a “guardian-ward relationship,” a view adopted to some extent by the Jicarilla Court just a few months ago:
The Court of Claims has observed that the relationship between the United States and Indians is not governed by ordinary trust principles: “The general relationship between the United States and the Indian tribes is not comparable to a private trust relationship. When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations applicable to private trustees are not imposed on the United States. Rather, the general relationship between Indian tribes and [the United States] traditionally has been understood to be in the nature of a guardian-ward relationship. A guardianship is not a trust. The duties of a trustee are more intensive than the duties of some other fiduciaries.” Cherokee Nation of Oklahoma v. United States, 21 Cl.Ct. 565, 573 (1990) (citations and internal quotation marks omitted).
One can only wonder what Justice Thomas would have done if Cobell had fallen into the Court’s lap. Today’s posting on the lower court’s sarcastic rejection of the government’s position on the merits of the Jicarilla trust claim suggests the DOJ and DOI are more than willing to offer up an argument to return the trust relationship to the Lone Wolf v. Hitchcock era.
Second, Justice Thomas has stated an interest in extending his onslaught on the commerce clause to the Indian Commerce Clause context. In United States v. Lara, he linked Lopez and Morrison to the Indian Commerce Clause: Continue reading
Does the 14th Amendment Privileges or Immunities Clause Extend the Second Amendment and Other Federal Rights to Indian Country?
Way out my league here, but Justice Thomas, perhaps, might think so. His reference today in McDonald v. City of Chicago to two Indian treaties from 1862 and 1868 [slip op. at 20 n. 7 (Thomas, J., concurring)] suggests that he could be thinking along those lines … or he was really struggling to find references to that language somewhere in treaty language circa 1860s.
Salon’s “This Week in Crazy: Clarence Thomas”
Here.
NYTs on Justice Thomas
From the NYTs:
Justice Clarence Thomas has not asked a question from the Supreme Court bench since Feb. 22, 2006. He speaks only to announce his majority opinions, reading summaries in a gruff monotone. Glimpses of Justice Thomas in less formal settings are rare.
But he turned up in a Washington ballroom the other night to respond to questions from the winners of a high school essay contest. His answers and the remarks that preceded them provided a revealing look at Justice Thomas’s worldview these days.
Turtle Talk 