Clarence Thomas: Precedent Counts (Or Doesn’t)

Supreme Court Justice Clarence Thomas is renowned for saying nothing at oral arguments. These days he won’t shut up. He still has diddly shit to say from the bench, but in connection with promoting his new book he’ll yammer on endlessly to anyone with a microphone.

ABC News legal correspondent Jan Greenburg is blogging her recent interview with Justice Thomas. The installment regarding Thomas’ views on precedent is here.

Somebody help a guy out ova hyeah.  I’ve been through the article three times and can’t for the life of me figure out what Thomas is on about.

I get the part about people thinking Thomas was a Scalia follower. Clarence thinks everyone who ever believed that is a racist. That’s crazy, of course, but at least it’s intelligible.

But the precedent stuff has me totally flummoxed. “Precedent is great except when it interferes with the result I want” is about all I can wring from that gibberish. If anyone can come up with a different interpretation for gems such as . . .

“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.

“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”

. . . please let me know. Thanks in advance.

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  • illusory tenant  On October 9, 2007 at 7:32 am

    Caboose: Warren Court.
    Engine: Lochner, Plessy, etc.

  • Clutch  On October 9, 2007 at 9:10 am

    It’s simple. He’s saying that sometimes you discover that a series of precedent judgements or opinions were written by nobody at all. Other people have been citing them, and using them to guide their own judgements, but it turns out they had no authors (i.e., drivers). They were just random marks on a page that subsequent generations mistook for reasoned arguments. And this insight is only available if you “go from the caboose” — i.e., like Stephen Colbert’s “knowing with your gut”, but further along in the alimentary system.

    Really, I’m a bit surprised you need this explained.

  • genghishitler  On October 9, 2007 at 9:18 am

    lol I knew I could count on you guys.

  • codesmithy  On October 11, 2007 at 2:58 am

    I hate to do this, and it is a horrible metaphor, but I think what he is trying to say is that precedents sometimes morph the original intent.

    I’m not a constitutional lawyer (or a lawyer for that matter) but the second amendment might be a good example of what he is trying to describe.

    “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

    Now, how this amendment is written, two things seem clear. 1) The right of the people to keep and bear Arms is contingent on a well regulated militia. 2) It doesn’t speak about guns, it talks about arms, which is reasonably anything that an Army would have access too.

    It is also important to note that the founders, George Washington in particular, thought that well regulated Militias not standing armies were the basis of security of a free republic. The difference is between individual citizen patriots willing to defend their liberty against oppressors as opposed to professional soldiers in a strict hierarchy of military command doing whatever they are told.

    Now, you look at the constitutionality of something like the Brady Handgun Act (the caboose) and all the precedents that preceded it (the cars, ultimately ending at the engine of the 2nd Amendment). Do we have a “well regulated militia” today? If you come to the conclusion that a “well regulated militia” doesn’t reasonably exist, then that would be an example of finding an engine with no driver. We’ve gotten on the wrong track somehow.

    Sorry, that is the best I can do. It is mostly based on knowing that Thomas is a conservative that favors a very strict interpretation of the constitution, not what he actually said. However, the problem is that the standard Thomas claims to endorse is invariably selectively applied which was why I chose the example of the second amendment to explain his tortured metaphor.

  • genghishitler  On October 11, 2007 at 6:39 am

    Nothing to be sorry about there, codesmithy. That’s some terrific stuff.

    However, the problem is that the standard Thomas claims to endorse is invariably selectively applied . . . .

    Truer words were never written, and in Thomas’ case the results are often batshit crazy. For a particularly disturbing example, check out his concurring opinion in Morse v. Frederick, commonly know as the “Bong Hits 4 Jesus” case from the Court’s last term.

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