In a bit of good news, the Supreme Court today declined to hear the appeal of two Establishment Clause cases from Utah striking down as unconstitutional state-approved memorial crosses on public highways. But in dissenting from this decision not to take the case, Clarence Thomas has done us the favor of reminding Americans just how out of the mainstream he is.
While Thomas’s dissent is an expansive critique of the Court’s Establishment Clause jurisprudence, he does briefly remind readers just how far from the mainstream his views are.
Even if the Court does not share my view that the Establishment Clause restrains only the Federal Government, and that, even if incorporated [by the 14th Amendment to apply to the states], the Clause only prohibits "actual legal coercion," the Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought. [emphasis added and internal citation removed]
Mitt Romney has made clear that he sees Clarence Thomas as the kind of jurist he would nominate to the Supreme Court. This is no surprise coming from someone who asked rejected Supreme Court nominee Robert Bork to lead his campaign’s legal advisory team.
Thomas’s dangerously narrow vision of the Establishment Clause is a good reminder of how much is at stake when Americans vote for president in 2012.