Justice Thomas “In an appropriate case”

June 29th, 2016

National Review invited me to write a short piece for a symposium on Justice Thomas’s quarter-century on the Court. My focus was on originalism, and where it led him. In the course of my research, I identified sixteen concurring or dissenting opinions where Justice Thomas indicated that “in an appropriate case” he would revisit some long-settled doctrine that conflicted with the original meaning of the Constitution.

Here are all of the “appropriate case” concurring/dissenting opinions from CT (drop me a line if I’m missing any).

  1. Confrontation Clause – For the foregoing reasons, I respectfully suggest that, in an appropriate case, we reconsider how the phrase “witness against” in the Confrontation Clause pertains to the admission of hearsay. I join the Court’s opinion except for its discussion of the narrow reading of this phrase proposed by the United States. White v. Illinois, 502 U.S. 346, 366, 112 S. Ct. 736, 748, 116 L. Ed. 2d 848 (1992). (Greg Katsas, who clerked for Justice Thomas during his first term on the Court, recounted this story during a FedSoc podcast, start at 7:35).
  2. Commerce Clause  – 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.Today, however, I merely support the Court’s conclusion with a discussion of the text, structure, and history of the Commerce Clause and an analysis of our early case law. My goal is simply to show how far we have departed from the original understanding and to demonstrate that the result we reach today is by no means “radical,” see United States v. Lopez, 514 U.S. 549, 585, 115 S. Ct. 1624, 1642-43, 131 L. Ed. 2d 626 (1995)
  3. Export-Import Clause – Our Civil War era decision in Woodruff v. Parham, 8 Wall. 123, 19 L.Ed. 382 (1869), of course, held that the Import-Export Clause applied only to foreign trade. None of the parties to these proceedings have challenged that holding, but given that the common 18th-century understanding of the words used in the Clause extended to interstate as well as foreign trade, it is *625 worth assessing the Woodruff Court’s reasoning with an eye toward reconsidering that decision in an appropriate case.The Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 624-25, 117 S. Ct. 1590, 1622, 137 L. Ed. 2d 852 (1997)
  4. Second Amendment – Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” Printz v. United States, 521 U.S. 898, 939, 117 S. Ct. 2365, 2386, 138 L. Ed. 2d 914 (1997).
  5. Ex Post Facto Clause – In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause. E. Enterprises v. Apfel, 524 U.S. 498, 539, 118 S. Ct. 2131, 2154, 141 L. Ed. 2d 451 (1998).
  6. Privileges or Immunities Clause – Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth *528 Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant. Saenz v. Roe, 526 U.S. 489, 527-28, 119 S. Ct. 1518, 1538, 143 L. Ed. 2d 689 (1999)
  7. Fourth Amendment (Reasonableness requirement– In light of this historical evidence, I would be open to considering, in an appropriate case, whether the Fourth Amendment *248 mandates the notice requirement adopted by the majority today. See Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (relying on common-law antecedents to define a “reasonable search”). I am unwilling, however, to endorse the majority’s ahistorical reliance on procedural due process as the source of the requirement. City of W. Covina v. Perkins, 525 U.S. 234, 247-48, 119 S. Ct. 678, 685, 142 L. Ed. 2d 636 (1999).
  8. Self-Incrimination – We have previously recognized that stare decisis is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case. Mitchell v. United States, 526 U.S. 314, 343, 119 S. Ct. 1307, 1322, 143 L. Ed. 2d 424 (1999).
  9. Non-Delegation Doctrine – As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers. Whitman v. American Trucking Association (2001).
  10. Eighth Amendment (Conditions of Confinement) – I continue to believe that “[c]onditions of confinement are not punishment in any recognized sense of the term, unless imposed as part of a sentence.” Farmer v. Brennan, 511 U.S. 825, 859, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (THOMAS, J., concurring in judgment). As a result, I do not think, as an original matter, that attaching petitioner to the restraining bar constituted “punishment” under the Eighth Amendment. See ibid. Nevertheless, I recognize that this Court has embraced the opposite view—that the Eighth Amendment does regulate prison conditions not imposed as part of a sentence, see, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)—so I will apply that jurisprudence in evaluating whether respondents’ conduct violated clearly established law. I note, however, that I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case. See Farmer, supra, at 861–862, 114 S.Ct. 1970 (THOMAS, J., concurring in judgment). Hope v. Pelzer, 536 U.S. 730, 759, 122 S. Ct. 2508, 2525, 153 L. Ed. 2d 666 (2002)
  11. Sixth Amendment (Sentencing) – Almendarez-Torres, like Taylor, has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U.S., at 248-249, 118 S.Ct. 1219 *28 SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520-521, 120 S.Ct. 2348 (THOMAS, J., concurring). The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres ‘ continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental “imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.” Harris v. United States, 536 U.S. 545, 581-582, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (THOMAS, J., dissenting). Shepard v. United States, 544 U.S. 13, 27-28, 125 S. Ct. 1254, 1264, 161 L. Ed. 2d 205 (2005)
  12. Takings Clause (Williamson County) – I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that **2510 the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic. Here, no court below has addressed the correctness of Williamson County, neither party has asked us to reconsider it, and resolving the issue could not benefit petitioners. In an appropriate case, I believe the Court should reconsider whether plaintiffs asserting a Fifth Amendment takings claim based on the final decision of a state or local government entity must first seek compensation in state courts.All Citations San Remo Hotel, L.P. v. City & Cty. of San Francisco, Cal., 545 U.S. 323, 352, 125 S. Ct. 2491, 2509-10, 162 L. Ed. 2d 315 (2005)
  13. First Amendment (Commercial Speech) – Accordingly, I would be willing to reexamine Zauderer and its progeny in an appropriate case to determine whether these precedents provide sufficient First Amendment protection against government-mandated disclosures. Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 256, 130 S. Ct. 1324, 1343, 176 L. Ed. 2d 79 (2010).
  14. Jury Clause (Cross-Section) Accordingly, in an appropriate case I would be willing to reconsider our precedents articulating the “fair cross section” requirement. But neither party asks us to do so here, and the only question before us is whether the state court’s disposition was contrary to, or an unreasonable application of, our precedents. Berghuis v. Smith, 559 U.S. 314, 334, 130 S. Ct. 1382, 1396, 176 L. Ed. 2d 249 (2010).
  15. Treaty Power  – I doubt the Treaty Power creates such a gaping loophole in our constitutional structure. Although the parties have not challenged the constitutionality of the particular treaty at issue here, in an appropriate case I believe the Court should address the scope of the Treaty Power as it was originally understood. Bond v. United States, 134 S. Ct. 2077, 2103, 189 L. Ed. 2d 1 (2014)
  16. Deference (Seminole Rock) – Although on the surface these cases require only a straightforward application of the APA, closer scrutiny reveals serious constitutional questions lurking beneath. I have “acknowledge[d] the importance of stare decisis to the stability of our Nation’s legal system.” “But stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.” McDonald v. Chicago, 561 U.S. 742, 812, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (THOMAS, J., concurring in part and concurring in judgment) (citation omitted). By my best lights, the entire line of precedent beginning with Seminole Rock raises serious constitutional questions and should be reconsidered in an appropriate case. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1225, 191 L. Ed. 2d 186 (2015)
  17. Deference (Chevron) – In an appropriate case, this Court should reconsider that fiction of Chevron and its progeny. Cuozzo Speed Techs., LLC v. Lee, No. 15-446, 2016 WL 3369425, at *22 (U.S. June 20, 2016).