Wow, Clarence Thomas is a real judge!

[billc]

Rush talked about Jeffery Toobins New Yorker article on Clarence Thomas on Wednesday and today, Michael Barone addresses the article. Apparently Jefferey Toobin, legal commentator, has discovered that Clarence Thomas isn't the dumb guy the left has painted him to be all these years. This is especially true since they are trying to get him out of the way for when obamacare hits the supreme court. Thomas's opinions on the Second Amendment and the 10th amendment cases that have come before him are apparently shaking up the legal world. Here is the article by Michael Barone:

http://www.realclearpolitics.com/articles/2011/09/01/obamacare_and_the_jurisprudence_of_clarence_thomas_111158.html

The bulk of the article is worthy of attention because Toobin, despite his obvious distaste for Justice Thomas' views, takes him seriously as a judicial thinker and pathfinder.
"In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court," Toobin writes. "Rarely has a Supreme Court Justice enjoyed such broad or significant vindication."
Toobin is on particularly strong ground when he discusses the Second Amendment's right to keep and bear arms. For years, it was considered a dead letter in sophisticated legal circles, protecting only the right to bear arms as a member of the National Guard.
But in 1997, Thomas wrote a concurring opinion in a case invalidating one provision in a 1993 gun control law. Thomas disagreed with the emerging legal scholarship -- some of it the product of liberal law professors, such as Sanford Levinson -- and argued that the Second Amendment was intended to protect a personal right to own guns.
Toobin notes that Thomas' concurrence was cited in a 1999 federal appeals court opinion and helped inspire the legal challenge to Washington, D.C.'s, effective ban on handgun possession. In June 2008, the Supreme Court overturned that law as a violation of the Second Amendment, with Justice Antonin Scalia's opinion closely following Thomas' reasoning.
Thomas' leadership on the Second Amendment reflects his frequent forays into history. Many of his opinions track the development of the law from the 18th or even the 17th century, and in many such cases, all or almost all his colleagues concur.

In addition, as Toobin accurately reports, Thomas is the strongest "originalist" on the court, the justice who most consistently seeks to apply the provisions of the Constitution as they originally were understood.
This has led him to take positions, sometimes in lonely dissent, that most New Yorker readers abhor. The 18th-century understanding of what constituted the "cruel and unusual punishments" banned by the Eighth Amendment is not widely shared these days on the Upper East Side of New York.
And Thomas' interpretation that the three post-Civil War amendments ban all racial quotas and preferences is anathema to the university administrators and corporate apparatchiks who employ them every day.
They might be embarrassed, however, if they actually read the parts of his opinions in which, with searing prose, he draws on his own experiences growing up in segregated Georgia and on his considerable knowledge of the history of oppression of black Americans.
And he brings up the embarrassing fact that the first gun control laws and limits on corporate campaign contributions were advanced by those who sought to deny rights to blacks.

 

[billc]

Here is Toobin's New Yorker aricle:

http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin

The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”

Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
In his jurisprudence, Thomas may be best known for his belief in a “color-blind Constitution”; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control. In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.)