The New Yorker has a profile of Clarence Thomas and how his conservative “leadership” will declare unconstitutional the Obama healthcare plan– deepening the crisis into which the costs of health insurance are plunging America.
Now, I am very skeptical of Thomas’ supposed brilliance. His career is replete with favors by patrons and ethically questionable dealings. What his opinions may well reflect is the best law clerks–or research by right-wing think tanks– that money can buy. But the man did get through Yale law school. He is not stupid. And when one combines the power of money, a cramped but adequate intellect, a lack of principles, and unquenchable bitterness, one gets what Jeffrey Toobin describes (via t/o):
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
The article includes some repellent hagiography, describing Thomas’ constitutional fundamentalism as humility (!), for example. And yet, this admirable humility before a document written by wealthy, unenslaved men to govern much poorer men, women, and slaves becomes a contempt for precedent when dealing with prior Court rulings. Indeed, Thomas imagines what original intent must have been, going so far as to use a survey of child-rearing in the 18th century to support a ban of video games. In a challenge to the Brady gun bill, the plaintiffs had not based their argument on the Second Amendment, so Thomas invented their argument for them!
And as to how it affects the healthcare law. Thomas’ wife, Ginni, is a movement activist. It is not credible that Thomas himself is not, but he pretends to be an impartial judge. And so we are left to imagine what Thomas and the other activist judges will do with the following:
the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year.
…
Four more circuit courts of appeals are slated to weigh in on the constitutionality of the health-care law. In due course, the Justices will have their turn. I asked [Virginia Attorney General and global warming denier Ken] Cuccinelli what role Thomas might play in the resolution of the health-care case. “I don’t like to make predictions,” he told me. “But I know I’ve got his vote.”
