Toobin: “Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that [mandate] law unconstitutional.”

August 22nd, 2011

A Long Piece About Justice Thomas in the New Yorker by Jeff Toobin  is here. Among other things, Akhil Amar compares Thomas to Hugo Black.

According to Akhil Reed Amar, a professor at Yale Law School, Thomas’s career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court’s history. “Both were Southerners who came to the Court young and with very little judicial experience,” Amar said. (Thomas is from Georgia.) “Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”

And there’s this how Thomas’s concurring opinion in Printz presaged Heller:

In his Printz opinion, Thomas gently elided the fact that the meaning of the Second Amendment had, at that point, long been considered a closed issue. Because of the “militia clause,” many lower-court decisions had held that the law did not confer the right to bear arms on an individual. That, more or less, was what the 1939 Supreme Court opinion said. Chief Justice Warren E. Burger, who was no liberal, called any other reading of the amendment “a fraud.” But in the nineteen-eighties and nineties the conservative movement, led by the National Rifle Association, began pressing for a new reading of the Second Amendment, one that invested in individuals the right to bear arms. Thomas gave this interpretation his imprimatur.

And a serious shout-out to Clark Neily:

Thomas’s opinion also drew the attention of Clark Neily III and Steve Simpson, two libertarian lawyers who wanted to bring a test case to the Supreme Court. They approached Robert Levy, a software and financial entrepreneur with libertarian views who in his fifties had sold his company and gone to law school. “There was an outpouring of scholarship, including from liberals, indicating that the Second Amendment secured an individual right,” Levy told me. “You had the Bush Administration taking that position. And you had the Emerson decision, citing Thomas’s Printz opinion.” Levy agreed to underwrite the costs, and he hired Alan Gura, a young lawyer from Virginia, to argue the case.

Here is how Toobin characterizes Thomas’s opinion in McDonald:

n a concurring opinion in that case, McDonald v. Chicago, Thomas argued that gun control originally arose as a way for whites to disarm blacks around the time of the Civil War. Referring to the revolts by Nat Turner and others before the war, Thomas wrote, “The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense.” He went on, with regard to the Reconstruction period, “The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence.” More bluntly, in his dissent in the Michigan law-school case, Thomas quoted Frederick Douglass: “If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!”

There are bits littered throughout about the ethical implications of recusal for the mandate case. Absolutely nothing about Justice Kagan’s potential conflicts.

The article closes with this quote:

I asked 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.”