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February 20, 2018

Dissenting from denial of cert, Justice Thomas complains Second Amendment has become "constitutional orphan"

The Supreme Court this morning issued this order list which is mostly full of denials of cert, but this lengthy opinion by Justice Thomas dissenting from the denial of certiorari in a case challenging California’s 10-day waiting period for firearms seems likely to garner plenty of attention.  Justice Thomas's dissent covers a lot of ground; I will leave it to others to dissect the Second Amendment particulars and be content here to quote from his closing complaints about Second Amendment jurisprudence since Heller:

The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend.  As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights.  See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1).

This double standard is apparent from other cases where the Ninth Circuit applies heightened scrutiny. The Ninth Circuit invalidated an Arizona law, for example, partly because it “delayed” women seeking an abortion.  Planned Parenthood Arizona, Inc. v. Humble, 753 F. 3d 905, 917 (2014).  The court found it important there, but not here, that the State “presented no evidence whatsoever that the law furthers [its] interest” and “no evidence that [its alleged danger] exists or has ever [occurred].” Id., at 914–915.  Similarly, the Ninth Circuit struck down a county’s 5-day waiting period for nude-dancing licenses because it “unreasonably prevent[ed] a dancer from exercising first amendment rights while an application [was] pending.” Kev, Inc. v. Kitsap County, 793 F. 2d 1053, 1060 (1986).  The Ninth Circuit found it dispositive there, but not here, that the county “failed to demonstrate a need for [the] five-day delay period.” Ibid. In another case, the Ninth Circuit held that laws embracing traditional marriage failed heightened scrutiny because the States presented “no evidence” other than “speculation and conclusory assertions” to support them. Latta v. Otter, 771 F. 3d 456, 476 (2014).  While those laws reflected the wisdom of “thousands of years of human history in every society known to have populated the planet,” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 25), they faced a much tougher time in the Ninth Circuit than California’s new and unusual waiting period for firearms.  In the Ninth Circuit, it seems, rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text.

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7).  And we have not clarified the standard for assessing Second Amendment claims for almost 10.  Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights.

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.... The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights.  The right to keep and bear arms is apparently this Court’s constitutional orphan.  And the lower courts seem to have gotten the message.

Nearly eight years ago, this Court declared that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). By refusing to review decisions like the one below, we undermine that declaration. Because I still believe that the Second Amendment cannot be “singled out for special — and specially unfavorable — treatment,” id., at 778–779 (majority opinion), I respectfully dissent from the denial of certiorari.

Even absent last week's horrific mass shooting in Florida, this opinion by Justice Thomas would be sure to get plenty of attention. And with debates over gun control seemingly now reaching a new pitch, this opinion adds an extra notable dimension to the developing discourse.

Though obviously not a sentencing case, I wanted to flag this dissent to (1) highlight the significant fact that Justice Thomas did not convince any of his colleagues to join his dissent, and thus (2) suggest this analogy: Justice Thomas is to constitutional limits on gun control laws as Justice Breyer is to constitutional limits on death penalty laws.

Justice Breyer has explained in various dissents why he thinks the Supreme Court should take up and consider further limits on capital punishment, but he has not succeeded over time to get additional Justices to join his campaign. Similarly, Justice Thomas is starting to make a habit of explaining why he thinks the Supreme Court should take up and consider further limits on gun control, but he has not succeeded over time to get additional Justices to join his campaign.

February 20, 2018 at 10:27 AM | Permalink


Hard to listen to anything Thomas says. Like Trump, he's a sexual predator.

Huffington Post
02/19/2018 05:48 pm ET
Clarence Thomas Sexually Harassed Me. Yes, He Should Be Impeached.

Angela Wright-Shannon
Guest Writer

U.S. Supreme Court Justice Clarence Thomas.

The impeachment of Clarence Thomas is a pipe dream. In this fantasy, Justice Thomas is actually brought to justice, removed for lying under oath during his Senate confirmation hearing. The pipe dream, which is gathering steam thanks to Jill Abramson’s exploration of Thomas’ lies in New York Magazine this week, is as realistic as the one where President Trump is impeached for bragging about sexually assaulting women.
I would know. In 1991, I was a metro editor at The Charlotte Observer, lobbying to become a columnist, when I was subpoenaed to testify at Thomas’ confirmation hearings after a colleague leaked word to Sen. Joe Biden that I was writing a column about my experiences working with Thomas. The column, though not intended for publication at the time, expressed my conviction that Anita Hill was telling the truth about Thomas — who, as Hill’s boss, allegedly tried to date her and engage in lengthy conversations about sex and pornography. I believed Hill because I had experienced similar behavior from him: He had repeatedly pressured me to date him and inquired about my breast size.
Members of the Senate confirmation committee immediately went on the attack after learning of me and my willingness to testify. I was characterized as a revengeful, foul-mouthed incompetent seizing an opportunity to strike back at the boss who had fired her. Never mind that I was happily ensconced as an editor at the Observer, a job for which Thomas himself had provided a recommendation. He had praised my performance as director of Public Affairs at the Equal Employment Opportunity Commission, and admitted that he “owed me an apology.”
Witness the Me Too movement, and the speed with which mighty men have fallen based solely on the word of their white women accusers.
None of that mattered: The wagons had circled. It was obvious that nothing that I had to say would matter to the men on the Senate confirmation panel. I long ago lost real hope for justice and vindication. All those men were white, and the women who accused Thomas were all African-American. It’s easy to imagine the hearings ending in a very different outcome if the accusers had been white.
How do you remove sexual predators from office when all attempts to prevent their ascension in the first place failed? And, when the accusers are women of color, justice is not just delayed; it’s often denied outright. Even Anita Hill’s sophisticated demeanor and impressive standing as a professor of law didn’t shield her from being labeled “a little bit nutty, and a little bit slutty.” That’s been the cultural narrative about African-American women throughout history.
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Because of fallacious stereotypes about the sexuality of African-American women, the people who rape and sexually harass us have often gone unpunished. Consider the case of Recy Taylor, who died in December three days before her 98th birthday. In 1944, Taylor was raped by six white men in Alabama, and threatened against speaking up. She didn’t keep silent, and even though her attackers confessed, two all-white, all-male grand juries declined to indict them. Former Oklahoma City patrol officer Daniel Holtzclaw sexually assaulted more than a dozen African-American women between December 2013 and June 2014, before one brave woman spoke up and he was brought to trial. Despite the testimony of 13 women, it took the jury 40 hours to reach a guilty verdict.
Given the general lack of empathy for black female victims of sexual assault and harassment, it may help that a white woman has now accused Thomas of sexual harassment ― after he joined the bench. Moira Smith is an attorney from Alaska who accused Thomas of groping her repeatedly during a dinner 20 years ago. If there is a remote possibility of getting Thomas impeached, it may lie with her.
Normally, white women don’t have to wage the same credibility battles facing black sexual assault victims; they aren’t assigned culpability for their own victimization. Witness the Me Too movement, and the speed with which mighty men have fallen based solely on the word of their white women accusers.
Four African-American women, including me, were willing to join professor Hill and testify about Thomas’ behavior. We all were denied a voice. Professor Hill and I were maligned by Thomas supporters, on the Senate panel and in his personal circle, in an attempt to coerce us into silence. But I wasn’t afraid to speak then, and I’m not afraid to speak now. Other women have since come forth, including Thomas’ ex-girlfriend Lillian McEwen, an African-American woman who surfaced in 2011 and confirmed that Thomas had a penchant for porn and behaved inappropriately with women at work. I confess to harboring a bit of resentment for all of the people, men and women, who I know had first-hand knowledge of Thomas’ behavior back in 1991, and who chose not to speak up at a pivotal moment. But I also understand why they chose to keep silent, given the vitriolic nature of the hearing. No one who went up against Thomas and the white men on that committee would have walked away unscathed.
It’s highly unlikely that Thomas will be impeached, but we can hope. The Me Too movement has underscored the depth and breadth of sexual harassment in our society. Finally, women are being heard and believed. Not only are women no longer willing to be silent, but men are being put on notice that their time is up.
We can hope that the Congressional balance of power shifts this election year, and that predators like Thomas, and even Trump, will be removed from power. Maybe it’s not just a pipe dream that two of the most powerful men in the country ― a Supreme Court justice and the president ― would have to answer for the many ways they have mistreated women.

Angela Wright is a freelance journalist living in Charlotte, North Carolina, and a senior facilitator with The OpEd Project. She is the “uncalled witness” from the Anita Hill/Clarence Thomas confirmation hearing.

Posted by: anon21 | Feb 20, 2018 11:02:43 AM

Justice Gorsuch joined Thomas at the end of last term to flag that he too thinks the Supreme Court has not done enough to take 2A cases.

Thomas has a point -- SCOTUS simply has shown no desire to take cases in this area, even Alito not publicly dissenting except in one mostly forgotten case involving a stun gun that SCOTUS disposed of in a per curiam way. In that case, SCOTUS said the MA Supreme Court dismissed a claim too broadly, Alito thinking they should have more substantively honored the 2A instead of the narrow opinion. SCOTUS did take a case involving firearms during which Thomas actually spoke during oral argument. He dissented in the opinion along with Sotomayor, who did not join his 2A remarks.

The comparison to Breyer is true only up to a point. Breyer has had company at times with RBG & Sotomayor writing dissents too, Kagan joining dissents a few times. And, at times a majority of justices do find some specific death penalty case worth taking, at least staying things for a bit. The 2A does not get even that treatment.

Posted by: Joe | Feb 20, 2018 11:40:01 AM

"The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising"

Reminds me of the old joke: "Your Honors, I come before the court today to appeal a decision by the Ninth Circuit Court. And I have additional arguments in my favor as well ..."

But coming from a SCOTUS associate justice ...

Posted by: Kent G. Budge | Feb 20, 2018 12:53:47 PM

The Supreme Court in a per curiam quickly overturned a 6CA opinion today. This analysis is five years old, but think it still is relevant:


The Ninth Circuit is a particularly large circuit with strong ideologically minded judges from both sides. It is not surprising there are a significant number of cases where justices believe they went beyond a reasonable position. Notable here only one did.

Posted by: Joe | Feb 20, 2018 1:07:54 PM

Well, anon21, you've definitely convinced me of one thing with your post: you're a moon-barking kook.

Posted by: MarkJ | Feb 20, 2018 1:13:24 PM

I don't think his analogy to abortion cases is entirely fair. The biggest difference is there are legal scrutiny standards to apply in those cases. Heller explicitly declined to adopt any scrutiny standard when it comes to the Second Amendment. I think it would be reasonable for Justice Thomas to say that the Court made a mistake in doing that and should redress their mistake, but it's not at all hypocritical for the Ninth Circuit to strike down laws requiring heightened scrutiny in one case while affirming them in cases where the Supreme Court was silent on that issue.

Posted by: Erik M | Feb 20, 2018 1:40:42 PM

MarkJ, not so fast labelling anon21 a "moon-barking kook." Consider the recent article in New York Magazine--too long to print fully here, but here's the first part:

"Do You Believe Her Now?
It’s time to reexamine the evidence that Clarence Thomas lied to get onto the Supreme Court — and to talk seriously about impeachment.
By Jill Abramson
Anita Hill and Clarence Thomas testifying before the Senate in 1991. Paul Hosefros/The New York Times/Redux (Hill); Jose R. Lopez/The New York Times/Redux (Rhomas)
February 18, 2018 9:00 pm
On the same fall night in 2016 that the infamous Access Hollywood tape featuring Donald Trump bragging about sexual assault was made public by the Washington Post and dominated the news, an Alaska attorney, Moira Smith, wrote on Facebook about her own experiences as a victim of sexual misconduct in 1999.
“At the age of 24, I found out I’d be attending a dinner at my boss’s house with Justice Clarence Thomas,” she began her post, referring to the U.S. Supreme Court justice who was famously accused of sexually harassing Anita Hill, a woman who had worked for him at two federal agencies, including the EEOC, the federal sexual-harassment watchdog.
“I was so incredibly excited to meet him, rough confirmation hearings notwithstanding,” Smith continued. “He was charming in many ways — giant, booming laugh, charismatic, approachable. But to my complete shock, he groped me while I was setting the table, suggesting I should ‘sit right next to him.’ When I feebly explained I’d been assigned to the other table, he groped again … ‘Are you sure?’ I said I was and proceeded to keep my distance.” Smith had been silent for 17 years but, infuriated by the “Grab ’em by the pussy” utterings of a presidential candidate, could keep quiet no more.
Tipped to the post by a Maryland legal source who knew Smith, Marcia Coyle, a highly regarded and scrupulously nonideological Supreme Court reporter for The National Law Journal, wrote a detailed story about Smith’s allegation of butt-squeezing, which included corroboration from Smith’s roommates at the time of the dinner and from her former husband. Coyle’s story, which Thomas denied, was published October 27, 2016. If you missed it, that’s because this news was immediately buried by a much bigger story — the James Comey letter reopening the Hillary Clinton email probe.
Smith, who has since resumed her life as a lawyer and isn’t doing any further interviews about Thomas, was on the early edge of #MeToo. Too early, perhaps: In the crescendo of recent sexual-harassment revelations, Thomas’s name has been surprisingly muted.
Perhaps that is a reflection of the conservative movement’s reluctance, going back decades, to inspect the rot in its power structure, even as its pundits and leaders have faced allegations of sexual misconduct. (Liberals of the present era — possibly in contrast to those of, say, the Bill Clinton era — have been much more ready to cast out from power alleged offenders, like Al Franken.)
But that relative quiet about Justice Thomas was striking to me. After all, the Hill-Thomas conflagration was the first moment in American history when we collectively, truly grappled with sexual harassment. For my generation, it was the equivalent of the Hiss-Chambers case, a divisive national argument about whom to believe in a pitched political and ideological battle, this one with an overlay of sex and race. The situation has seemed un-reopenable, having been tried at the highest level and shut down with the narrow 1991 Senate vote to confirm Thomas, after hearings that focused largely on Hill.
But it’s well worth inspecting, in part as a case study, in how women’s voices were silenced at the time by both Republicans and Democrats and as an illustration of what’s changed — and hasn’t — in the past 27 years (or even the last year). After all, it’s difficult to imagine Democrats, not to mention the media, being so tentative about such claims against a nominated justice today. It’s also worth looking closely at, because, as Smith’s account and my reporting since indicates, Thomas’s inappropriate behavior — talking about porn in the office, commenting on the bodies of the women he worked with — was more wide-ranging than was apparent during the sensational Senate hearings, with their strange Coke-can details.
But, most of all, because Thomas, as a crucial vote on the Supreme Court, holds incredible power over women’s rights, workplace, reproductive, and otherwise. His worldview, with its consistent objectification of women, is the one that’s shaping the contours of what’s possible for women in America today, more than that of just about any man alive, save for his fellow justices.
And given the evidence that’s come out in the years since, it’s also time to raise the possibility of impeachment. Not because he watched porn on his own time, of course. Not because he talked about it with a female colleague — although our understanding of the real workplace harm that kind of sexual harassment does to women has evolved dramatically in the years since, thanks in no small part to those very hearings. Nor is it even because he routinely violated the norms of good workplace behavior, in a way that seemed especially at odds with the elevated office he was seeking. It’s because of the lies he told, repeatedly and under oath, saying he had never talked to Hill about porn or to other women who worked with him about risqué subject matter.
Lying is, for lawyers, a cardinal sin. State disciplinary committees regularly institute proceedings against lawyers for knowingly lying in court, with punishments that can include disbarment. Since 1989, three federal judges have been impeached and forced from office for charges that include lying. The idea of someone so flagrantly telling untruths to ascend to the highest legal position in the U.S. remains shocking, in addition to its being illegal. (Thomas, through a spokesperson, declined to comment on a detailed list of queries.)
Thomas’s lies not only undermined Hill but also isolated her. It was her word versus his — when it could have been her word, plus several other women’s, which would have made for a different media narrative and a different calculation for senators. As the present moment has taught us, women who come forward alongside other women are more likely to be believed (unfair as that might be). There were four women who wanted to testify, or would have if subpoenaed, to corroborate aspects of Hill’s story. My new reporting shows that there is at least one more who didn’t come forward. Their “Me Too” voices were silenced."

Posted by: Sam the prosecutor | Feb 20, 2018 2:01:47 PM

Coordinated hit-pieces against Thomas digging up he said-she said allegations from 30 years ago.

sad and pathetic

Posted by: skeptic | Feb 20, 2018 2:40:02 PM

Jill Abramson? Are you kidding?

Posted by: SVT | Feb 20, 2018 2:59:49 PM

Leftists against Clarence Thomas have certainly demonstrated their ability to cut and paste lies. But can they think of original ones? No, that would require original thought.

Posted by: Ingot9455 | Feb 20, 2018 3:20:38 PM

Ingot 9455, Cutting and pasting is not such a bad idea, depending on what you cut and paste. Say what you will, that Thomas was the cruelest judge by far was recognized back in 1992 as this "cut and paste" from the New York Times editorial illustrates:

"The Youngest, Cruelest Justice
Published: February 27, 1992

"Only four months after taking his oath as a Justice, Clarence Thomas finds himself rebuked by a seven-member majority of the Rehnquist Court [Hudson v. McMillian, 503 U.S. 1 (1992)}, for disregarding humane standards of decency. The withering reprimand, included in the Supreme Court's majority opinion in a prison case Tuesday, is this:

To deny, as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment.

The Eighth Amendment forbids cruel and unusual punishments. Only Justices Thomas and Antonin Scalia refused to apply it to the case of Keith Hudson, a Louisiana prisoner who was shackled and beaten by two guards while their supervisor watched, warning them only against having "too much fun."

The two dissenters likened the case to prisoner gripes about inconveniences behind bars. They contended that since the prisoner suffered only a split lip, loosened teeth and a broken dental plate, he had no constitutional complaint. They chided Justice Sandra Day O'Connor's majority opinion for turning the Bill of Rights into "a national code of prison regulation."

The seven Justices are joined by prison reformers, human rights groups and the Bush Administration's Department of Justice in recognizing that this case turned on "contemporary standards of decency." They know it is indisputably cruel when prison guards add brutally and recklessly to legally prescribed punishment. They know it is up to the courts to make sure such conduct remains unusual as well.

The Thomas dissent would be alarming coming from any justice. Coming from him, it rings also with crashing disappointment.

He is, for one thing, the youngest Justice. He might well serve until the year 2030 or beyond. Although his voting record now is identical only to that of Justice Scalia, he could attract enough support from future appointees to move the Court still further to the right.

A second disappointment concerns hope. Justice Thomas rose from poverty and discrimination in Pin Point, Ga., and his nomination won support from prominent people sure he would bring to the Court the understanding bred of hardship. Indeed, he testified poignantly about watching busloads of prisoners from his window. "I say to myself almost every day, there but for the grace of God go I," he told senators eager to believe him. As a Justice, Clarence Thomas doesn't talk that way anymore.

Posted by: Sam the prosecutor | Feb 20, 2018 3:36:57 PM

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