Greece Ruling Shows Thomas’ Radicalism

The Supreme Court’s ruling in Greece v Galloway once again revealed just how radical Justice Clarence Thomas is in his jurisprudence. He and Justice Scalia agreed with the result but wrote a concurring opinion arguing that only actual government coercion — punishing someone for not attending church, for instance — is forbidden by the Establishment Clause. But Thomas went even further in a section of the concurrence that even Scalia would not join:

The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” As I have explained before, the text and history of the Clause “resis[t] incorporation” against the States. If the Establishment Clause is not incorporated, then it has no application here, where only municipal action is at issue.

As an initial matter, the Clause probably prohibits Congress from establishing a national religion.

Probably?

The text of the Clause also suggests that Congress “could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause.”

He is quoting his own previous opinion in another case there. His position is that the Establishment Clause only means that the federal government can’t interfere if a state wants to have an official church or religion and that it does not protect any individual right at all. Nor does he think the 14th Amendment applies that clause to the states under the doctrine of incorporation. Think about how dangerous that idea is. Do you think, say, Alabama or South Carolina would hesitate for a moment to declare their states officially Christian if Thomas’ view was in place?

This view is so radical that even the other conservative members of the court refuse to join him in that position. He’s dragged Scalia considerably further to the right on many issues in his time on the court (no, contrary to popular opinion among liberals, Thomas is not Scalia’s lapdog; in fact, the opposite is often true), but on that one even Scalia doesn’t agree.

This is one reason why I get so irritated by the often facile criticisms that my fellow liberals aim at Thomas, about whether he asks questions or some such irrelevant nonsense. There are real reasons to criticize Thomas. He’s more radical and more dangerous than most understand and his (often) solo dissents have several times become the majority opinion later down the line. If Thomas’ understanding of the Constitution held sway the majority of the time, we would be well and truly screwed.

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  • colnago80

    I don’t think that there can now be any doubt that self hating Afro-American Thomas was a fuckken liar during his confirmation hearing relative to the accusations of of Anita Hill and that the latter was entirely truthful. I entirely agree with Brayton that this guy is dangerous radical, perhaps the most dangerous such person to have ever served on the court.

  • http://www.themindisaterriblething.com shripathikamath

    Why harp on Thomas and give Obama a pass? The Obama administration sided with Greece in this lawsuit.

  • gshelley

    Possibly because the Obama administration didn’t agree with Thomas on this one, so their position is not relevant. You could of course look at Ed’s first post on this, or any he made before the ruling. I think you’d find he criticised Obama at that time

  • thascius

    @2 And as all “True Liberals” know it’s much, much more important to bash liberals for being imperfect than it is to oppose radical right-wing extremists. Better a thousand George W. Bush’s than a single Al Gore.

  • colnago80

    Re thascius @ #4

    And of course, the Nader voters in Florida and New Hampshire are entirely responsible for the presence of Alito and Roberts on the court. Al Gore just wasn’t pure enough for them. And many of them will also decline to vote for any of the Democrats currently being touted in the media against Jeb Bush.

  • qwints

    @colnago80, why blame the 100,000 Nader voters and not the almost 1,000,000 registered democrats who didn’t vote?

  • Nihilismus

    @5 colnago80

    You keep harping on Nader voters, and others keep pointing out how nonsensical this position is. More Democrats voted for Bush than Gore in Florida. The already-then-existing conservative Supreme Court stopped the recount, giving the election to Bush — unofficial counting afterward showed that Gore would have won. Nader voters were not responsible for Scalia, Thomas, and Kennedy.

    And most importantly, Roberts and Alito were nominated in Bush’s SECOND term — voters could have brought in Kerry before any damage was done. Blame them, or blame O’Conner for being willing to step down when she was obviously going to be replaced by someone more conservative who would undue some of the moderate precedents she set.

  • colnago80

    Re #6

    The Nader voters did vote and those who were Democrats, almost certainly the majority, declined to vote for Gore because he wasn’t pure enough for their tender feelings. They are responsible for Alito and Roberts and their excuses and rationalizations won’t suffice. Many of these ratfuckers have already announced that they won’t vote for Clinton if she is the Democratic nominee in 2016, regardless of who the Rethuglican candidate is. I’m no fan of Hillary but I would much rather have her picking the replacements for Ginsburg and probably Breyer then Jeb Bush or Ted Cruz. If a Rethuglican is elected in 2016 and Ginsburg and Breyer retire or die, it is my prediction that their replacements along with the 4 fascists currently on the court will not only overturn the DOMA decision but will declare same sex marriage to be unconstitutional.

    By the way, a large number of those registered Democrats are really Reagan Democrats who haven’t bothered to re-register as Rethuglicans, whom they mostly vote for these days. This is true in many of the Southern states.

  • colnago80

    Re Nihilismus @ #7

    As I stated in my comment in #8, many of the registered Democrats in Florida are Reagan Democrats who vote Rethuglican these days and just haven’t bothered to re-register.

    However, you can rationalize and excuse all you want. The fact is very simple. If Gore wins Florida in 2000 (or even New Hampshire), which he would have done if even a small fraction of those Nader voters had voted for him, the butterfly ballots in Palm Beach Co. would have been irrelevant and the SCOTUS decision would never have happened. Alito and Roberts wouldn’t be on the court. That’s the bottom line. Period, end of story.

  • qwints

    I’m completely lost at the moral logic that blames some people who voted for neither Gore nor Bush but not others. Gore needed 538 more votes. More people failed to vote correctly than voted for Nader. More people stayed home than voted for Nader. The move to blame Nader is a tool of the corporatist wing of the Democratic party that tries to de-legitimize anyone to the left of Ronald Reagan.

  • http://angrybychoice.fieldofscience.com Lorax

    Anyone have suggestions on good, scholarly, yet readable, books on supreme court rulings, jurists, etc?

    Thanks.

  • qwints

    A bit old, but Peter Irons’ A People’s History of the Supreme Court is good.

  • RickR

    His (Thomas’) position is that the Establishment Clause only means that the federal government can’t interfere if a state wants to have an official church or religion and that it does not protect any individual right at all.

    Wasn’t this also the position of commenter King of Ireland, who argued this point over and over ad nauseum back in the day?

  • colnago80

    Re wints @ #10

    I don’t blame Nader, I blame the fucktards who voted for him.

  • Artor

    @colnago80

    By the way, a large number of those registered Democrats are really Reagan Democrats who haven’t bothered to re-register as Rethuglicans, whom they mostly vote for these days. This is true in many of the Southern states.

    Do you have a citation for this, or is it an assertion you pulled out of your ass?

  • http://angrybychoice.fieldofscience.com Lorax

    Thanks Qwints. I’ll put it in my cue.

  • Chiroptera

    qwints, #6:

    Me, I always thought that the blame for Bush winning the 2000 election belongs to…the people who voted for Bush.

  • dickspringer

    It certainly is true that Dubya would have lost if Nader hadn’t run or if his supporters hadn’t voted for him. In Maine we currently have arguably the worst governor in the country, Paul Lepage (Possibly Rick Scott or Scott Walker is worse.). Lepage was elected with 39% of the vote because the bulk of the vote was split between two liberal candidates, one of who got 38% of the vote. Spoilers are real and irresponsible.

  • Martin Lefebvre

    Why the harping on Nader? IF Gore had carried his home State of Tennessee Florida would have been a moot point.

  • colnago80

    Re Martin Lefebvre @ #19

    That’s a fair point. However, it ignores the fact that Tennessee has become a fairly strong red state since the last time Gore, running on his own, won an election there (in 1990). The Clinton/Gore ticket did win the state in 1996 but with less then 50% of the vote.

  • eric

    colnago, I gotta go with thascius on this one. You are blaming 100,000 voters who didn’t agree with you, when in fact nationwide the turnout was only about 54%. 194 million voters, and 107 million cast ballots. You want to lay blame, I think the 87 million no-shows (or even just count half of that, for the Democrats) is much more to blame than 100,000 third candidate voters. You are upset because the Nader voters could’ve given Gore one key state, but you’re ignoring the fact that the no-show democrats are such a big group that they could’ve given Gore 50 states.

  • colnago80

    Re eric @ #21

    That’s a foolish argument. You could also argue that those no-shows could have given Dubya 50 states. We don’t know how the no-shows would have voted. We can only go by those who did show up and the plain fact is that the number of votes for Nader in Florida and New Hampshire was greater then the margin between Dubya and Gore.

    New Hampshire: Dubya won New Hampshire by a little over 7000 votes while Nader received about 22,000 votes. It could be argued here that, even with Nader out of the race and assuming that all the Nader voters actually showed up in that contingency, Gore’s chances were decidedly less the 50/50 as he would have had to get at least 2/3 of the Nader votes, a tall order.

    Florida: Dubya won Florida by about 500 votes, although some counts had his margin down around 200 before the SCOTUS called a halt. Nader got 97 thousand votes. With Nader out of the race, assuming that all the Nader voters showed up in that contingency, Gore would have only had to get a little more than 1/2 of the Nader votes, a very likely contingency as the Nader voters were generally far to the left of Dubya, and less so to Gore, i.e. Gore was a more likely 2nd choice then Dubya.

    http://en.wikipedia.org/wiki/United_States_presidential_election,_2000

  • jameshanley

    @dickspringer

    Spoilers are real and irresponsible.

    How dare more than two people run for any given office, and how dare people exercise “democracy” by actually voting for them!

  • colnago80

    Re James Hanley @ #23

    I would agree with the good professor to the extent of voting in deep red or blue states. I had no problem with people in places like Maryland or Massachusetts voting for Nader in 2000 nor with people in Texas or Utah doing the same as a protest vote. However, in purple states like Florida or New Hampshire, an accusation of irresponsibility is very much in order.

  • Christian Huseby

    Keeping with the tread: Campaign For Change proved that the problem for liberal candidates is turnout. If you run a strong ground game and drag people to the polls they will vote the more for the more liberal ticket. Not that Obama is liberal, but he was far to the left of his opponents and we are WAY better off with him in the chair then we would have been if Grampy or Mittens had won the white house.

    More pertaining to Ed’s post: I for one look forward to a time when states can name their own sponsored religion. The 30 years war was supper fun for Europe and the United States does internal conflict as well as anybody in the world. *Sarcasm (incase I did not lay it on thick enough)

  • Chiroptera

    eric, #21:

    Which brings up the other weird thing. If all those Nader voters in Florida had just stayed home on election day, then nothing about the election would have changed, except that no one would be blaming them for anything. Somehow, voting for the third candidate vs not voting at all makes all the difference in the world.

  • Snoof

    Ah, you know you’re among lefties when they spend more time bickering about a lost election fourteen years ago than dealing with problems in the present day.

    (Right-wingers, on the other hand, never bother to remember anything about the past beyond “It was better then and people knew their place”.)

  • imst

    Nader’s way, way too big of an effect to be considered to have swung the result in Florida. If only the 621 people that voted for David McReynolds, the representative of the Socialist Party USA had voted for Gore it would have swung the election.

    IOW, can we please get over this stupid, stupid fucking argument now that it’s almost 14 years later?

  • tomh

    @ 27 Snoof

    Exactly right. Although I’ve been guilty of the same thing, arguing, ad nauseum, that Nader and his followers are responsible for all sorts of things, you are right, it is useless. And boring.

  • jameshanley

    @colnago80

    I cannot agree. Your argument requires that democracy be about producing the “right” outcome, which you define as the one you want. That’s not what democracy’s about at all. Democracy is about majority rule within some set of reasonably fair procedural constraints.

    Within those constraints, everyone’s free to vote their conscience. A person is free to vote strategically if they choose to do so, but opting to vote for one’s true preference is not really “irresponsible.” This is especially true since votes are cast at an individual level. For any prospective Nader voter in 2000, their choice between Nader and Gore had no effect on the outcome, so changing his/her vote wouldn’t change a thing. This is still true if every other Nader voter had changed his/her vote to one for Gore–the hypothetical lone Nader voter still wouldn’t have changed the outcome.

    So if it’s irresponsible, that can only apply at a group level, not an individual level, and collective responsibility is a tricky–even dangerous, although probably not in this case–concept.

    And as others have noted, why target Nader voters for voting badly, instead of prospective Gore voters who just stayed home? Or why not chastise the Nader voters for not staying home themselves? Or even, as imst cheekily suggests, why not blame the Socialists (surely the would have been happier with a commie-lib Dem–just jokin’–than with W).

    2000 was an unfortunate outcome, I agree. I was a Gore voter myself, and I think W is surely among the 5 worst presidents ever. But in a democracy, calling others irresponsible for voting differently than we do is a dangerous slope (although, fortunately, it doesn’t seem to be very slippery).

  • colnago80

    Re James Hanley @ #30

    The problem with the good professor’s argument is that we can’t speculate on those who didn’t show up to vote, which usually, even presidential elections amounts to about 1/2 of the registered voters. We can only evaluate those that did show up.

    Within those constraints, everyone’s free to vote their conscience.

    The fact is that voting for a candidate who has not the remotest chance of winning the election is a protest vote meaning that he/she is dissatisfied with the choice of the candidates of the two major partiers and is sending them a message; nothing whatever to do with conscience. Doing so in a purple state is equivalent to saying that he/she doesn’t think that the candidates differ in any significant way. Well, those folks were wrong, and the presence of Alito and Roberts on the SCOTUS is the proof of that. The rest of us will be paying for that miscalculation for decades.

    Just for the record, I have been there and done that. In the 1968 election, I declined to vote for Humphrey because of his involvement in the Vietnam War, as did tens of thousands of fellow California voters. The result was Nixon and Watergate. I was wrong and have no hesitancy in admitting it. Most of the 2000 Nader voters refuse to admit they were wrong and all too many of them will do the same thing in 2016 if Clinton is the Democratic nominee. Anybody who doesn’t care whether Clinton or Jeb Bush appoints Ginsburg’s replacement and possibly Breyer’s as well is seriously deluded.

  • Nihilismus

    Once again, Alito and Roberts were nominated in Bush’s SECOND TERM!!!!! I really can’t stress enough how nonsensical it is to blame Nader’s candidacy in 2000 for something that happened after an intervening election in 2004.

  • jameshanley

    @Colnago

    The fact is that voting for a candidate who has not the remotest chance of winning the election is a protest vote meaning that he/she is dissatisfied with the choice of the candidates of the two major partiers and is sending them a message; nothing whatever to do with conscience

    Um, since when is protest of any form “nothing to do with conscience”? I think there are a lot of differences between an Obama presidency and a Romney presidency. Nevertheless, I could not in good conscience support either of them. Whether I stay home and refuse to vote or vote third party, in either case it’s an act of conscience.

    Honestly, I find that statement very weird. It sort of assumes that you can make a determination about when people are acting out of conscience or not, and can authoritatively declare that not one of the nearly 4 million people who cast third party votes–whether for leftish or rightish parties–acted out of conscience, despite their beliefs that they did.

    I just can’t get on board with that kind of sweeping declaration about other people’s internal motivations.

    @nihilismus

    I think it’s fair to say that had W not had a first term, he wouldn’t have had a second term.

  • Nihilismus

    @33 jameshanley

    I think it’s fair to say that had W not had a first term, he wouldn’t have had a second term.

    It’s fair to make the argument, but given how close the 2000 election was, Bush may very well have ran again in 2004 even if he lost in 2000. Maybe another Republican would have run and won, still nominating justices that were too conservative.

    The implication by colnago80 seems to be that if Gore had won, he also would have won a second term and the same vacancies would have occurred. Maybe for whatever reason Rehnquist wouldn’t have died. Maybe O’Conner would have waited even longer to retire until there was eventually another Republican president. And maybe Gore wouldn’t have actually won a second term. It’s possible 9/11 would have still happened, and if we didn’t go into 2 wars, many voters would feel not enough was done. Or at least without a war, voters wouldn’t think it would be risky to switch leaders — a fear that some Bush voters had.

    Bush did become President in 2001, but we could have elected a different president in 2004. While incumbency made things easier for Bush, it’s not everything — as Bush, Sr., can attest to. Nader’s 2000 candidacy is simply too attenuated from Bush’s 2004 win to be a meaningful talking point. Blaming Nader isn’t astute political analysis — rather, it says more about the person singling Nader out over all other causes of current Supreme Court decisions.

  • jameshanley

    @nihilismus

    given how close the 2000 election was, Bush may very well have ran again in 2004 even if he lost in 2000.

    Possible, but doubtful. The practice of losing nominees being given a second shot at the brass ring died out about a century ago, and with good reason, as they tended to lose their second attempts as well.

    Nader’s 2000 candidacy is simply too attenuated from Bush’s 2004 win to be a meaningful talking point. Blaming Nader isn’t astute political analysi

    Oh, I’m totally on the same page with you there. I’d begin by critiquing Gore’s uninspiring campaign.