Justice Thomas’ America

Like Antonin Scalia, Clarence Thomas has sought to use his power as a Supreme Court justice to rewrite the law in order to create radical changes threatening our rights. Here are just some of the sweeping changes you could expect in Justice Thomas’s America:

There would be no right to privacy. Thomas believes that there is no “general right to privacy” guaranteed by the Constitution.26 Some of the consequences of this radical belief are his stance against reproductive choice and his judgment that hospitals should have the right to test pregnant women for drug use without their consent and then hand the results to police. 27

State and local governments would be able to establish official religions. Thomas argued that displays of the Ten Commandments on government property should be allowed, because the First Amendment’s Establishment Clause does not apply at all to state and local governments.28 This would literally allow any state to adopt an official religion.

The government would be able to censor library, museum, and public broadcasting content. Thomas and Scalia have stated that they believe the First Amendment’s free speech protections do not apply to much government activity. They would permit overt viewpoint discrimination and censorship by government agencies providing funds to libraries and museums.29

A judge’s foremost responsibility would be to his or her religious beliefs—not the Constitution. At a swearing-in ceremony, Thomas reportedly told a new appointee to the Alabama Supreme Court that the Constitution should be regarded as secondary to a judge’s personal understanding of the will of God.30

The government would be able to jail American citizens and hold them for unlimited amounts of time without access to an attorney. Thomas would uphold the Bush Administration’s assertion that the government can indefinitely detain as enemy combatants U.S. citizens who are apprehended abroad. These citizens would be denied any legal representation and would lose their constitutional right to a day in court.31

Voters would lose effective protections from racial discrimination at the polls. Thomas once offered such a radical interpretation of the Voting Rights Act of 1965 that Justices Stevens, Blackmun, Souter, and Ginsburg responded by saying his interpretation would require overturning at least 28 previous Supreme Court decisions.32 Despite clear congressional intent and Court precedent, Justice Thomas has refused to recognize that the Voting Rights Act is intended to be broadly interpreted to prohibit racial discrimination in all aspects of voting.33

Americans would lose protections against horrific punishment. When a prisoner was handcuffed to a “hitching post,” taunted, and deprived of access to water and a bathroom for long periods, the Supreme Court ruled that the “cruel and unusual” nature of this punishment was “obvious,” and that the punishment was therefore unconstitutional. Thomas, however, joined Scalia in dissenting from the majority opinion.34

Americans would not have the right to a second medical opinion if their insurance company refused to pay for a needed procedure. Thomas argued that the Court should overturn state laws that give recipients of health care coverage from HMOs the right to an independent medical review if there is a dispute between the patient’s doctor and HMO about the “medical necessity” of a procedure. 35

Some anti-discrimination and equal opportunity protections would disappear. Thomas suggested that the Court erred in Brown v. Board of Education when it considered the social and psychological impact segregation had on black school children36 and called affirmative action “noxious,” and “government-sponsored racial discrimination.”37 Thomas also would have allowed a school district to deny a quadriplegic boy the nursing care that made it possible for him to attend school.38 In addition, Thomas was part of a narrow majority that voted to strike down key parts of the Violence Against Women Act39 and the Age Discrimination in Employment Act.40

Large groups of citizens will have no recourse when big corporations harm their health and pollute their environment. Thomas and Scalia argued that a citizens’ group was not allowed to file suit when a waste disposal company released toxic chemicals into the local water supply. These citizens had no standing in court, he argued, because all citizens, not just some, were affected.41 This backward logic would apparently allow citizens to seek enforcement of environmental regulations only when a few are harmed, but not when a great number are injured.

The government will be able to determine what people can watch on TV. Thomas tried to uphold federal restrictions on allegedly “offensive” or “indecent” programming on cable television, which includes programming with a high degree of educational or artistic value.42 Such reasoning could enable the government to restrict the expression of ideas that are controversial.

[1] Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990).
[2] Webster v. Reproductive Health Services, 492 U.S. 490 (1989) and Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) are examples.
[3] Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990)
[4] Sean Wilentz, From Justice Scalia, a Chilling Vision of Religion’s Authority in America, New York Times, July 8, 2002.
[5] Locke v. Davey, 540 U.S. 712 (2004).
[6] Edwards v. Aguillard, 482 U.S. 578 (1987).
[7] Lee v. Weisman, 505 U.S. 577 (1992).
[8] Grutter v. Bollinger, 539 U.S. 306 (2003).
[9] Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995).
[10] Lawrence v. Texas, 539 U.S. 558 (2003). In his dissent, Scalia complained that the Court’s decision signaled the end to laws against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”
[11] Justice Scalia Says War Justifies Rights’ Recess, Associated Press, March 18, 2003.
[12] United States v. Virginia, 518 U.S. 515, 566 (1996) (Justice Thomas did not participate in the decision).
[13] Freeman v. Pitts, 503 U.S. 467 (1992).
[14] Dickerson v. United States, 530 U.S. 428 (2000).
[15] Two such cases include Georgia v. United States, 411 U.S. 526 (1973); United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977).
[16] Powers v. Ohio 499 U.S 400, 417 (1991) and Campbell v. Louisiana 523 U.S. 392, 403 (1998).
[17] NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990).
[18] Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002).
[19] Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992).
[20] City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
[21] Friends of the Earth, Inc. v. Laidlaw Environmental Services, (TOC) Inc., 528 U.S. 167 (2000).
[22] Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
[23] Alaska Department of Environmental Conservation v. EPA, 560 U.S. 461 (2004).
[24] Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
[25] Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).
[26] Lawrence v. Texas, 539 U.S. 558, 606 (2003).
[27] Ferguson v. City of Charleston, 532 U.S. 67 (2001).
[28] VanOrden v. Perry, 125 S.Ct. 2854 (2005).
[29] NEA v Finley., 524 U.S. 569 (1998).
[30] Stan Bailey, Three Associate Justices, One Judge Sworn In, Birmingham News, Jan. 15, 2005; Remarks of Justice Tom Parker on the Occasion of his Oath of Office, Jan. 14, 2005. Available at http://parkerforjustice.com/remarks_oath_of_office.htm.
[31] Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
[32] Holder v. Hall, 512 U.S. 963-965 (1994).
[33] Morse v. Republican Party of Virginia, 517 U.S. 186 (1996).
[34] Hope v. Pelzer, 536 U.S. 730 (2002).
[35] Rush Prudential HMO v. Moran, 536 U.S. 355 (2002).
[36] Missouri v. Jenkins, 515 U.S. 70 (1995).
[37] Adarand Construcors, Inc.v. Pena, 515 U.S. 200 (1995) at 241.
[38] Cedar Rapids Community School District v. Garrett F., 526 U.S. 66 (1999).
[39] United States v. Morrison, 529 U.S. 598, 628-29 (2000).
[40] Kimel v. Florida Board of Regents, 528 U.S. 62, 99 (2000).
[41] Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000).
[42] Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 812 (1996).
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