Tag: clarence thomas
The Supreme Court Rebuked Trump On Birthright Citizenship, But That’s Not The Real Story

The Supreme Court Rebuked Trump On Birthright Citizenship, But That’s Not The Real Story

By Monday evening, the storyline had already solidified: a mixed bag for Trump at the Supreme Court. A split verdict on executive power. The Wall Street Journal had the Court “expanding presidential authority” in one breath and “rejecting” Trump’s bid to fire a Fed governor in the next. Trump himself, never one to undersell, called it a “tremendous loss” on the mail-in ballot case and a “BIG WIN” on the firings, and even that whiplash got reported straight, as if he were just providing the scoop—a president taking his lumps along with his victories, proof the system is working as designed.

Don’t believe it. The last two days of decisions only advance the actual storyline: a radically conservative court consolidating its constitutional overhaul and leaving open the prospect of further radical changes to come.

Set against the real stakes of the cases the Court decided this week, this was a week to leave conservatives celebrating, topping off a term that was a conservative juggernaut. And the single most important thing that happened, by a wide margin, isn’t the birthright citizenship case that dominated the headlines. It’s the essential consummation of a project this Court has been working on for sixteen years: the dismantling of the structural architecture that has insulated huge swaths of the federal government from raw presidential control.

Start with Trump v. Slaughter. Read the first paragraph of most of the coverage, and you’d think it was a wash—the Court let Trump fire an FTC commissioner, but it stopped him from firing a Fed governor in the companion case. Tossup, right? Wrong. Slaughter isn’t one beat in an even trade. It’s the demolition, and Cook is the small, fragile thing sitting, illogically, in the rubble.

For ninety years, Humphrey’s Executor v. United States—a unanimous, 9-0 decision, the kind of case first-year law students learn as black-letter, foundational, not-up-for-debate—held that Congress could protect FTC commissioners from being fired without cause. That single case has been the load-bearing wall underneath the entire modern administrative state: the NLRB, the SEC, the Federal Reserve itself before this term, dozens of agencies built by Congress specifically to operate at one remove from whoever happens to be sitting in the Oval Office.

Slaughter lays waste to this entire project on a straight 6-3 ideological vote.

Steve Vladeck called Slaughter “the most important separation-of-powers ruling of the twenty-first century,” and I don’t think that’s hyperbole. It embraces the closest thing to an absolutist version of the unitary executive theory that has been a hobbyhorse on the right for two generations.

Let’s now turn to Trump v. Cook, in which the Court declined to lump the Federal Reserve in with all the other agencies whose wings the Court and Trump now have clipped. It’s the other side of the supposed “split verdict” the Court delivered to the President. In fact, that emerging view both overstates the importance and understates the incoherency of the case.

Five justices—with Roberts and Kavanaugh reversing their positions from the Slaughter case—held that the Fed’s unique historical lineage, tracing back to the First and Second Banks of the United States, exempts it from the unitary executive logic that governs everything else.

The Court didn’t carve out a coherent doctrinal exception for the Federal Reserve, and it’s hard to see what principle of executive power would exempt the Fed. The muddle presented Sotomayor with a field day in her dissent, which she read from the bench. Why do the distinctive characteristics of the Fed amount to a constitutional argument, overcoming the force of Article II, that Congress can insist on the president’s having a good reason for firing Fed governors? The majority’s attempted proffer of historical analogues or influence of monetary policy feels like the sort of makeweight distinction for exempting the Fed, when the real reason is that giving the president the same controlling power could wreak havoc on the national and international economies. Whatever else that is, it is not a constitutional argument.

Properly understood, the Cook decision only underscores the weakness of the Court’s entire line of cases aggrandizing the president and eliminating Congress’s ability to provide for agency independence.

The “balance” narrative the press is running with gets this exactly backwards. The Fed carve-out doesn’t prove the Court is being moderate or restrained. If anything, it underscores just how contingent and unpersuasive the other cases are. In Cook, the majority essentially invents a bespoke, ad hoc exception out of whole cloth for reasons that make eminent sense but don’t stand up alongside the Court’s overall project of taking a wrecking ball to the administrative state.

The stakes of the Court’s arch-reactionary project—wiping the books clean of nearly 100 years of canonical constitutional law—are easy to underappreciate. The dozens of agencies that the Court now has gutted have played a huge role in American life since the New Deal, comprising more or less every area of health, safety, and well-being. The modicum of independence that Congress has provided has meant that they go about their work with an emphasis on expertise and political nonpartisanship.

The independence Congress built into the FTC, the NLRB, the Nuclear Regulatory Commission, the Consumer Product Safety Commission, and dozens of other agencies was salutary and beneficial. Each time, Congress concluded that some questions are better answered by people with expertise and some distance from whoever just won an election than by political appointees taking orders from the West Wing. These agencies bring exactly that—expertise, continuity, nonpartisanship—to decisions that are, quite literally, life-and-death: whether a drug is safe, whether a nuclear plant is sound, whether the money supply is being managed honestly.

Conservatives have long insisted that independent agencies constitute a “headless” fourth branch of government that cuts against the grain of the tripartite constitutional scheme. Nobody has pressed that argument longer, or more patiently, than John Roberts himself. As a young Reagan White House lawyer in 1983, he wrote that “the time is ripe to reconsider the constitutional anomaly of independent agencies.”Two decades later, newly installed as chief justice, he began laying the groundwork to get there, writing in a 2010 case that without unrestricted removal power, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Seila Law followed a decade after that. On Monday, from the center seat, he finished the job he started forty years earlier, declaring flatly: “If anything more is left of Humphrey’s, we overrule it.”

It’s the same kind of strategic patience that produced his slow-motion dismantling of the Voting Rights Act—wait for a reliable majority, chip away case by case, and fully swing the hammer once the votes are no longer in doubt.

Justice Elena Kagan, almost certainly the Court’s preeminent expert in administrative law, has most carried the project of explaining the fundamental flaws and real-world damage of the Court’s evisceration of agency independence. She wrote the principal dissent in Selia Law in 2020, when the Court carved the CFPB’s single director out of Humphrey’s protection. Kagan argued, presciently, that the majority’s supposed “exceptions” to presidential removal power were, in her words, “made up for the occasion,” gerrymandered to reach the result the Court wanted. She joined Breyer’s dissent in Collins the next year, when the Court extended that same logic to the Federal Housing Finance Agency. And now she’s joined Sotomayor’s dissent in Slaughter, as the Court finally erased the unanimous decision in Humphrey’s Executor.

Six years ago, Seila Law arrived as a sort of exception eating the rule, one bite at a time. Now there’s no rule left to eat, just a poorly reasoned carveout of the Fed.

It’s important as well to assess the breadth of the damage to the administrative state that the Court now has green-lighted. It’s not just a matter of the firings that will actually happen, though there will be plenty of those: nothing excites Trump more than the power of saying “you’re fired.”

But the impact will be broader and more corrosive. An expert at the Nuclear Regulatory Commission deciding whether a reactor is safe, an economist weighing a rate decision, a scientist evaluating a vaccine—all of them now know that the “wrong” finding, the politically inconvenient one, can get them sacked at will, no cause required. You don’t have to fire very many people to make everyone else flinch. That’s the thumb on the scale: toward partisan convenience and away from independent expertise, exactly the trade the people who built these agencies thought they had foreclosed for good.

I want to close with a word on the term-ending decision in the birthright citizenship case, Trump v. Barbara, because it is of a piece with the more accurate narrative of the executive power cases. The case is likely going to get covered today as the big Trump rebuke of the term, and on one level, that’s fair. Roberts wrote for five justices holding that children born here to parents who are undocumented or here temporarily are citizens, full stop, exactly what the text of the Fourteenth Amendment says.But it’s stunning and stomach-turning that four justices were ready to say otherwise.

Thomas, in a cribbed, nasty opinion, argued the Fourteenth Amendment was really only ever about overruling Dred Scott and doesn’t mean what it plainly says. And Kavanaugh, presenting himself as the careful institutionalist, concurred in the judgment but argued the real problem is only statutory—that Congress could amend the citizenship statute tomorrow to carve out children of undocumented parents, fully consistent with the Constitution as he reads it. But there is no such position consistent with the Constitution: the question is always, and only, whether people are born here and are subject to the jurisdiction of the United States. If so, they are citizens by the plain command of the constitutional text

Trump noticed within hours, taking to Truth Social, announcing that “no long and unwieldy Constitutional Amendment is necessary,” that Congress should “start TODAY” on legislation ending birthright citizenship, with his “Complete and Total Support.” That’s not freelancing. That’s Trump reading Kavanaugh’s opinion correctly and picking up exactly the tool the Court left sitting on the table for him.

So yes, we dodged a bullet. But it landed in the vicinity, close enough to feel the whistle of it. A case this easy, this dictated by text, this nearly self-evident—and four members of the Supreme Court were willing to read it the other way. That’s in many ways the bigger story.

It’s in fact the same story, told twice in two days: a court inclined to bend toward the administration’s preferred outcome whenever doctrine gives it the slightest room to do so, and restrained by margins more thin, fragile, and narrow than the headlines suggest.

Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.

Reprinted with permission from Talking Feds.

Justice Thomas Delivers 'Historically Illiterate' Speech Berating Progressives

Justice Thomas Delivers 'Historically Illiterate' Speech Berating Progressives

When Supreme Court Justice Thurgood Marshall announced his retirement in 1991 and President George H.W. Bush nominated Clarence Thomas, he wanted the seat to be held by another Black justice. Marshall was an historic figure: Appointed by President Lyndon B. Johnson in 1967, he was the first Black justice in the High Court's history.

But Thomas, now 77, was a major departure from Marshall in terms of judicial philosophy. While Marshall (who passed away in 1993) was decidedly liberal, Thomas is a far-right social conservative. And over the years, he had strong disagreements with not only the late liberal Justice Ruth Bader Ginsburg, but also, with retired libertarian/conservative Justice Anthony Kennedy.

Thomas looked back on U.S. history during a speech on Wednesday night, April 15, at the University of Texas-Austin Law School, arguing that progressive politics are incompatible with the Declaration of Independence. But The New Republic's Matt Ford, in an article published on April 17, argues that Thomas got history wrong in multiple ways.

Thomas told attendees, "As we meet today, it is unclear whether these principles will endure. At the beginning of the 20th Century, a new set of first principles of government was introduced into the American mainstream. The proponents of this new set of first principles, most prominently among them the 28th president, Woodrow Wilson, called it progressivism. Since Wilson's presidency, progressivism has made many inroads in our system of government and our way of life. It has coexisted uneasily with the principles of the Declaration. Because it is opposed to those principles, it is not possible for the two to coexist forever."

But according to Ford, Thomas' take on U.S. history is wildly inaccurate.

"Thomas is correct that progressivism was introduced around the turn of the 20th Century, that Woodrow Wilson was the 28th president, and that Wilson was a progressive," Ford explains. "The historical accuracy ends there. Presenting Wilson as the inventor of progressivism is historically illiterate, akin to saying that Joseph Stalin invented communism or that Ronald Reagan invented conservatism. In reality, the progressive era emerged in the 1890s from the corruption and excesses of the Gilded Age."

Ford continues, "A broad range of activists, journalists, legislators, and judges challenged the societal ills that had emerged from the nation's rapid industrialization…. I'm sure that Wilson would have liked to claim credit for inventing the progressive movement, but he was one figure in a much larger social and political ecosystem. Republicans and Democrats alike both supported the movement and its reforms, and the first president to embrace it was actually Theodore Roosevelt."

Ford argues that for Thomas, it is "rhetorically advantageous to make" Wilson "the standard-bearer of progressivism" because he "was perhaps the most racist person to hold the presidency between Andrew Johnson and Donald Trump."

"It allows certain conservative intellectuals to adopt the guise of anti-racism while simultaneously opposing the civil rights laws passed decades after Wilson died," Ford notes. "I bring all of this up not to defend Wilson himself, but to point out the importance of getting history correct."

Reprinted with permission from Alternet


Ginni And Clarence

Protect Women From Murderous Partners? Justice Thomas Won't Have It

Well, I guess somebody has to stand up for the rights of spousal killers, wife beaters, child abusers, and the Second Amendment, and I’ll just bet you can guess who it is.

Yesterday, Supreme Court Justice Clarence Thomas stepped up and took one for the team, voting alone against the 8-1 decision in United States v. Rahimi that bars people from possessing firearms while they are under domestic violence restraining orders. Not stripping them of the right to own guns, mind you, but only suspending that right under the Second Amendment until such an asshole can get the restraining order straightened out so he can get his guns back.

Thomas must be spending so much time in the history stacks in the Fairfax County library, where he lives in Virginia, that they’re probably considering buying a cot for him to take naps on during his long hours of study of our laws in the 1700’s and 1800’s, not to mention old English law and a few ancient Greek statutes he quoted in his Bruen gun rights decision. Perusing the laws that were in existence at the time of our nation’s founding, Thomas wrote in his dissent in yesterday's case, “Not a single historical regulation justifies the statute at issue.” The “statute at issue” suspends the right of those under domestic violence restraining orders from possessing guns.

Chief Justice John Roberts appears to be the one who convinced four of the other six gun nuts on the court, all of whom voted to allow bump stock-equipped machine guns earlier in the week, to join him in at least temporarily coming to their senses. Roberts was able to somehow resurrect enough common sense on the court that he got enough votes to rule, as the author of the decision, that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” I mean, whoop-de-fucking-doo, but I guess we are in the position of taking them when we can get them, right?

The plaintiff in the case, one Zacky Rahimi, is a convicted drug dealer who had beaten his girlfriend to the ground in a parking lot and was dragging her back to his car when a bystander intervened. Rahimi fired a shot at the bystander, and the girlfriend took that opportunity to escape. Rahimi called her later and threatened violence – specifically, he said he would “shoot” her – if she told anyone about the incident. The girlfriend asked a Texas court to issue a restraining order and amazingly they agreed, finding that Rahimi had committed “family violence” and suspended his right to possess guns while the restraining order was in effect.

Rahimi managed to hang onto enough firearms that he was involved in five shootings in the following months, according to the Supreme Court brief filed by the Biden Department of Justice. Rahimi was charged with illegal possession of a firearm, was convicted in federal court and sentenced to six years in prison. But Rahimi continued to argue that his rights under the Second Amendment had been violated. The Fifth Circuit Court of Appeals ruled against Rahimi at his first hearing, but after Justice Thomas wrote the decision in Bruen, ruling that laws restricting firearms had to be rooted in the “history and tradition” of this country, the Fifth Circuit reheard the case and, incredibly, ruled for Rahimi. Citing the Bruen case, a Trump appointee on the court wrote that while the federal law banning people under restraining orders from possessing firearms was “meant to protect vulnerable people in our society…our ancestors would never have accepted” laws against domestic violence.

The decision by the Fifth Circuit Court of Appeals was unanimous, so Rahimi’s right to keep and bear arms under the Second Amendment was restored.

The case was appealed by the DOJ to the Supreme Court, where many legal experts feared it would hit the “history and tradition” brick wall of Thomas’ Bruen decision. Chief Justice Roberts, however, appeared to back the court away from that decision a bit today. “Some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber,” Roberts wrote. “The Second Amendment permits more than just those regulations identical to ones that could be found in 1791.”

Roberts cautioned that if courts hearing gun cases were to consider only laws in existence at the founding of the country, they would find laws dealing with “muskets and sabers.” Instead, Roberts urged courts that will interpret his decision in the future to consider whether a gun regulation at issue is “relatively similar” to regulations that were in effect closer to the nation’s founding. “For example,” Roberts wrote, “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.”

In the amazingly dull and nearly impenetrable language of the Supreme Court, that comes as close as we will ever get to a relaxation of the Thomas decision in Bruen, which courts like the Fifth Circuit have interpreted as turning back the clock to the way guns were regulated in 1791, which is to say not at all.

That may be why Thomas was the lone dissenter in the decision today, because it took some of the edges off his celebration of guns-for-everybody in the Bruen decision. Or maybe Thomas, in his history-stacks-diving on domestic violence laws discovered, as he has before, a favorite old English construction of what husbands and domestic partners are permitted to do to the women in their lives: the “Rule of Thumb.”

It’s not like this subject hasn’t been dealt with before. In January of 1982, the U.S. Commission on Civil Rights issued a report that was titled "Under the Rule of Thumb: Battered Women and the Administration of Justice.” The commission found that when it came to domestic violence, “American law is built on the British Common Law that condoned wife beating and even prescribed the weapon to be used. This ‘rule of thumb’ stipulated that a man could only beat his wife with ‘a rod not thicker than his thumb.’” The commission noted that William Blackstone, who “greatly influenced the making of law in the American colonies,” commented thusly on the rule of thumb: “For as the husband is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of chastisement, in the same moderation that a man is allow to correct his apprentices or children.”

American courts, bless their bleeding hearts, can be said to have taken up the rod passed to them by the Brits. Have a look at this from an 1864 court in a case of a man who choked his wife: “The law permits him to use towards his wife such a degree of force, as is necessary to control an unruly temper, and make her behave herself; and unless some permanent injury be inflicted, or there be an excess of violence, or such a degree of cruelty as shows that it is inflicted to gratify his own bad passions, the law will not invade the domestic forum, or go behind the curtain. It prefers to leave the parties to themselves.” The Civil Rights Commission quoted a Mississippi Supreme Court case from 1824: “Let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned.”

After an Alabama court had rescinded the right of a man to beat his wife in 1871, a North Carolina court came along and provided some relief to all those poor men who had to deal with those damn recalcitrant women: “If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”

Thomas, in his dissent that would allow abusive husbands and male partners under court restraining orders to own guns, would appear to smile upon Ye Ole Rule of Thumb as well. It’s history and tradition, you understand — Thomas’ favorite harkening back to the good old days when a man was allowed to own not only a gun, but a stick big enough to beat his wife with.

Justice Thomas' Opinion On Firearm 'Bump Stocks' Is A Stinking Lie

Justice Thomas' Opinion On Firearm 'Bump Stocks' Is A Stinking Lie

Yesterday’s Supreme Court decision on bump stocks wasn’t about bump stocks or the guns to which they are attached. It was about the conservative majority’s all-out attack on the power of the government’s executive department to issue regulations and be able to enforce them.

The regulation that made bump stocks illegal was issued by the Bureau of Alcohol, Tobacco and Firearms (ATF). The regulation was based on the National Firearms Act of 1934, which made it illegal for civilians to own machine guns without qualifying and paying for a special license, and the Gun Control Act of 1968, which expanded the 1934 law to make it illegal to manufacture or own parts that can be used to convert a firearm to fire automatically.

The 1934 law defined machine guns as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The ATF defined a bump stock as a part that, when added to an AR-15 style semiautomatic rifle, converts the weapon to an illegal machine gun.

Bump stocks were used by the Mandalay Bay shooter who killed 60 people and wounded 413 at a music festival in Las Vegas in 2017. He fixed multiple semi-automatic AR-15 rifles with bump stocks and fired from his hotel room down on the crowd gathered to listen to music in an empty lot across from his hotel. In videos of the massacre, firing by an automatic weapon can be heard in the background as people attempt to flee.

Responding to the mass killing of so many people in such a short period of time by one man with a gun, the Trump administration ATF made bump stocks illegal. The owner of a gun store in Austin, Texas, filed a lawsuit claiming that the ATF had exceeded its authority by classifying bump stocks as a part that converted a weapon to fire automatically, thus making bump stocks illegal.

Justice Clarence Thomas, and the five other conservative justices who are bound and determined to defenestrate what the right-wing calls “the administrative state,” had to find a way to rule that the ATF had overreached in its 2017 regulation. Thomas did this by telling an outrageous lie about how bump stocks work: “A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does,” Thomas wrote for the majority. “Even with a bump stock, a semiautomatic rifle will fire only one shot for every ‘function of the trigger.’ With or without a bump stock, a shooter must release and reset the trigger between every shot.”

This is a baldfaced lie. When a shooter fires a semiautomatic AR-15 style rifle, he pulls the trigger, discharging a round through the barrel. As the bullet passes a tiny hole in the barrel, gas from the gunpowder explosion expands through the hole, actuating the rifle’s receiver, sending it backward, ejecting the spent round and reloading another. The shooter then must pull the trigger again to make the weapon repeat the same action. A semiautomatic AR-15 can thus fire only as fast as a shooter can pull the trigger.

A bump stock works by replacing the normal stock on an AR-15 with a sliding stock that uses the recoil of the rifle to repeatedly and rapidly cock and fire the weapon with only a single pull of the trigger. The shooter pulls the trigger once, and leaving his finger on the trigger, the bump stock takes over and does the rest, cocking and firing the weapon in rapid succession as if it were a machine gun. Here is a short video showing a bump stock in action that explains how it works.

The shooter in the video positions the bump stock tightly against his shoulder and pulls the trigger once, unleashing the automatic firing of a fusillade of bullets. For Thomas to write that even when using a bump stock, the “shooter must release and reset the trigger between every shot” is clearly shown to be a lie by the video.

In recent decisions like Dobbs and the Thomas-authored decision that overturned New York’s handgun law, this Supreme Court has reached back into the nation’s past to come up with “history” and “tradition” they could distort and lie about for their own purposes. This time, Thomas didn’t have to tell his clerks to pull out the history books so he could misrepresent their contents. All Thomas had to do was tell a blatant and foul lie about how the bump stock works, a lie so shameless that it can be disproven by a gun nut with a cell phone camera and a bump stock equipped AR-15.

Common sense and evidence on this Supreme Court have been supplanted by money and ideology. In the decision by Justice Thomas, he may as well have sat there wearing his black judicial robes and announced, “Look at my beautiful white robes. Keep looking. If you look long enough, you’ll see my white robes, or maybe not. I don’t care either way.”

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

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