Clarence Thomas Admits That He’s Coming for Our Rights - by Elie Mystal

Found here. Our comments in bold.

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This article is rich in irony. So rich in fact that it is nearly overwhelming, both in its stark obviousness and also in Mr. Mystal's deliberate blindness to it. To spout off like he does about precedent, legal tradition, and of course, stare decisis, yet be completely unaware that his fellow Leftist ideologues on the Supreme court have for decades been doing exactly what he decries in Justice Thomas is astoundingly naïve. Or, devious.

The thing is, Justice Thomas as a strict constructionist isn't coming for anyone's rights. The whole idea is preposterous that a man whose highest objective is the return of the federal government back to its constitutional restrictions and divest it of its unconstitutionally gained powers would be after anyone's rights. Such an objective would necessarily increase individual liberties, not steal rights.

Further, it should be clear to constitutional "scholars" like Mr. Mystal that courts do not create rights, they create privileges. Privileges are subject to the whims of judges, culture, and politicians. Rights are given by by God and are unalienable. 

We have commented on Mr. Mystal's screeds before (here, here, here, and here.), and found him to be nothing more than a relay for The Narrative. The Narrative is the daily talking points and bumper sticker slogans disseminated by Central Command. Media figures and pundits like Mr. Mystal simply regurgitate this agitprop over and over until they actually believe it themselves.

So Mr. Mystal is not here to explain anything. He does not intend to defend constitutional principles. The truth is not his objective. Mr. Mystal is writing solely to serve The Narrative. 

We advise the reader to accept nothing he writes on face value.

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In a little-covered speech, the Supreme Court justice explained how he thinks the court should reverse rulings conservatives don’t like. (Irony Alert. The Left has been doing this for decades.)

n an interview at Catholic University last week, Supreme Court Justice Clarence Thomas said what he’s clearly been thinking for the past 30 years: Supreme Court precedents don’t matter, and he’s making things up as he goes along to fulfill his own political agenda. (Irony Alert. The Left has been doing this for decades.)

He didn’t say it in that way, of course. People would have noticed that. Instead, he couched his self-serving philosophy in legal jargon that will fly under the radar of most people, including journalists. Here’s what he said: “At some point we need to think about what we’re doing with stare decisis.… [I]t’s not some sort of talismanic deal where you can just say ‘stare decisis’ and not think, turn off the brain, right?”

To translate: “Stare decisis” is a foundational legal principle in this country and all countries that follow a “common law” system. What it means, in simple terms, is that prior judicial rulings govern future judicial rulings. (Well, no. It's a legal principle that court cases with features similar to previous court decisions ought to be decided similarly.)

If a court rules, for instance, that “gay people have the same basic rights as everyone else in this country, including the right to marry other people,” (Irony Alert. 

Previously, throughout history, marriage has been recognized as only between a man and a woman. That was the stare decisis. But Mr. Mystal is in favor of of upholding this new stare decisis and not the previous one because as a Leftist he agrees with it. But for issues he disagrees with, he would be against upholding stare decisis. 

More specifically, by Mr. Mystal's criteria this decision (Obergefell v. Hodges) itself violated stare decisis. 

So for Mr. Mystal, the issue isn't constitutional at all; that's just a smokescreen. His agenda is solely political.)

then that ruling is supposed to govern all future cases concerning the rights of gay people. (Did Mr. Mystal intend to write, "dictate all future cases," because that's what he actually means.)

Thomas, apparently, doesn’t agree. Instead of respecting stare decisis and precedent, (Irony Alert.)

he is saying that older cases shouldn’t have the power to control newer ones. For Thomas, just because courts ruled that LGBTQ people should have rights in the past, including the right to marry, doesn’t mean he feels compelled to rule that they should keep them. (Which seems to be completely in agreement with Mr. Mystal's position, although he's on the other side of the politics of this issue.)

Obviously, courts change the rules and take things away all of the time. (Oh. So what's the problem again?)

Sometimes, old cases are just, well, old, and their rulings should not be carried forward perpetually into the future. (Oh. So stare decisis is not inviolable?)

There are legitimate ways to overcome stare decisis—specifically, three ways—but that’s not what Thomas is proposing. Still, it’s helpful to understand what they are.

The first is legislation or amendments. Congress could pass a new law saying “gay people don’t have the same rights as other Americans” or amend the constitution to do the same thing. (Which of course is a false and inflammatory assertion, since we are actually not discussing rights at all, but as we said, privileges. Gays do not suffer from lack of rights, though they might not enjoy certain legal privileges. 

But no one is able to possess every legal privilege. Examples: a driver's license, collecting Social Security, a firearm, food stamps, a security clearance.)

The most famous time this happened in American history was when the Reconstruction Amendments (the 13th, 14th, and 15th amendments) overruled the Dred Scott decision. (Apparently Mr. Mystal is actually not against overturning precedent.)

But new legislation or amendments happen rarely.

Usually, Congress doesn’t break stare decisis; judges do. The most common way for them to do that is to “distinguish” the case before them from cases in the past. This, my friends, is where most legal appellate work is done. Show a lawyer a rule governing “trees,” and get prepared for a botanist’s dissertation distinguishing “bushes” from the noble tree. A famous example of distinguishing was when John Roberts redefined Obamacare as a “tax” (it wasn’t) to avoid making another precedent allowing the government to use the commerce clause to regulate health care. (Does Mr. Mystal read his own magazine? The Nation reported that Justice Roberts sided with the Leftist justices to create the majority necessary to validate the constitutionality of the Obamacare. Calling it a tax is just the sort of legal maneuvering Leftists are famous for. So Justice Thomas' opinions about precedent and the decisions of the courts are not terribly out of bounds based on Justice Roberts' blatant legal maneuvering for political purposes.

In actual fact, legal principles really don't matter to the Left. And clearly, moral ones don't either.)

The third way to ignore precedent and break stare decisis is to claim that things have materially changed since the old ruling. It’s the judicial equivalent of saying, “At one time we thought the earth was flat but now we know it is round, so our prior rulings demanding the destruction of telescopes are overturned.” The most famous historical example of this is Brown v. Board of Ed overturning Plessy v. Ferguson. In Brown, the court said that segregation hurt Black people in ways that white people couldn’t have possibly known when they decided Plessy (note: They freaking knew).

The astute reader will note that at no point are judges supposed to say that prior precedent was wrong. (There's something that restricts what judges can say? What?)

They’re not supposed to come out and say, “We are overturning this old case, because we don’t like it anymore and desire different political and legal outcomes. (Irony Alert.)

Thank you for coming to my TED talk.” Congress is allowed to do that, but not the courts. (Mr. Mystal keeps talking about what's allowed and not allowed. We'd sure like to know where he sourced this information, because we've never heard this before. And what the law allows has never concerned the Left at all.)

Clarence Thomas is saying: To hell with all that. He knows that the normal way of dealing with stare decisis is not to “turn your brain off.” (Which of course is not his claim. Thomas was calling into question those like Mr. Mystal who brainlessly scream stare decisis when it's politically convenient.)

His problem is that the legitimate ways of overturning prior opinions doesn’t get him to where he wants to go. He can’t say anything has materially changed since, for instance, Obergefell v. Hodges, which recognized same-sex marriage. (Mr. Mystal cannot point to anything that had materially changed when the Court changed the definition of marriage.)

He can’t distinguish new marriage equality cases from the old one, and Stephen Miller hasn’t furnished him with a new constitutional amendment to outlaw the practice. But he certainly doesn’t want gay couples to get married. (Duh. Justice Thomas voted against the majority, which almost was the minority had Justice Roberts not gone turncoat. Had the decision gone the other way Mr. Mystal would certainly be hysterically objecting to the court's decision violating the rights of people and that the court should have overturned precedent. 

Again, Mr. Mystal's objection is not legal, it is political.)

Stare decisis blocks him from stopping them, so he’s telling people to ignore stare decisis. (The ironies just don't stop.)

Thomas thinks that some prior decisions were just wrong (The ironies just don't stop.)

and he gets to decide what is wrong and what is right, even though nobody elected him to do that work. (The ironies just don't stop.)

Here’s another quote from his Catholic University talk: “We never go to the front [to] see who’s driving the train, where is it going. And you could go up there in the engine room, find it’s an orangutan driving the train, but you want to follow that just because it’s a train.”

First of all, I swear Thomas is the only Black public intellectual I am familiar with who uses simian analogies when describing something he thinks is stupid. They need to add him to the DSM as a new form of “self-loathing.” (Mr. Mystal is a racist. He thinks blacks are like monkeys.)

Anyway… Thomas is saying that if he doesn’t like where the “train” of stare decisis is leading him, he can just get off and go in a different direction. Remember, Thomas’s war against the 20th century can’t achieve victory if old Supreme Court opinions have weight. (How old is Obergefell again? Oh. 2015.)

In place of stare decisis, Thomas offers this invented framework: that “the precedent should be respectful of our legal tradition, and our country, and our laws, and be based on something, not just something somebody dreamt up and others went along with.” (Amen. Go, Justice Thomas, go!)

The problem is: The question of which precedents are “respectful of our legal tradition, our country, and our laws” can quickly devolve into what Clarence Thomas thinks is “respectful” of those traditions or laws. (That is precisely his job.)

It’s completely ungrounded from anything real or provable. (Or so Mr. Mystal claims...)

It’s not even textual. “Respect” means whatever the hell Thomas wants it to mean, at any given time. (The ironies just don't stop.)

We’ve seen this in Thomas’s opinions in recent years. In 2022, he declared, in a separate but supporting opinion in the Dobbs case, that Roe v. Wade was not respectful of our legal traditions, but Loving v. Virginia is. Why? Well because Roe gave women rights, (No, it granted no rights, because rights cannot be granted. Roe v. Wade gave legal cover for women to murder their own babies.)

while Loving gave Thomas the right to marry his white wife, and if you have a better legal difference between those cases other than Thomas’s own personal preferences, (The ironies just don't stop.)

I’d love to hear you explain it. Thomas has also decided (in this case, writing for the majority) that simple gun registration laws are not respectful of our traditions in this country, but he signed on to an opinion giving the president the powers of the very king we revolted against. You simply cannot chart a course through what passes for logic in Thomas’s head without understanding his preferred policy outcomes. (Justice Thomas must be a monkey in Mr. Mystal's mind. Apparently it never occurred to him that Justice Thomas operates according to well thought-out legal principles. That Justice Thomas, as a "Black public intellectual," is actually smart. The fact that his carefully considered judicial philosophy yields results different from that of Mr. Mystal doesn't make the justice stupid or evil. 

We are done commenting on this vapid screed.)

If Thomas were the only justice who thought like this, it would be a containable problem. But the entire Republican cabal on the Supreme Court rules exactly in the way Thomas is talking about, with no respect for precedent or stare decisis. This coming term, the Republicans on the court are likely to overturn a voting rights precedent they set for themselves only a couple of years ago. The Republicans literally cannot be trusted to respect their own rulings.

The entire Trump administration has been a “mask off” moment for the Supreme Court’s conservatives. It turns out, they don’t actually care about precedent (no matter how many times they lied and claimed to care during their Senate confirmation hearings). They don’t actually care about the text. They don’t actually care about judicial restraint. They want the political outcomes they want and they have the votes to do it.

Thomas’s speech is a declaration that there is no judicial precedent that is safe from the current Republicans on the court. Stare decisis will not stand in their way of getting what they want. You could read the entire speech as a shot across the bow of Obergefell v. Hodges, and it is, but it’s also a rare moment where Thomas told the truth about what he and his friends are actually doing. They do not care about traditions, norms, or the very foundation of judicial decision making in a common law system. They only care about winning.

That’s all going to be very bad for those of us who do not happen to be white cis-hetero men in the near term, but there is a silver lining. Thomas’s speech at Catholic University literally lays down the playbook for how to defeat him and all the evil and cruelty he has wrought during his time on the bench. According to Thomas, future Supreme Court justices do not have to wrestle with the precedents laid down by Thomas and his Roberts-court brethren. They do not have to distinguish future cases from the ones that are being decided today. They do not have to wait for Congress to pass new laws, or for the Constitution to be amended. They don’t have to stay on the train Clarence Thomas is driving.

And I am here for that. By Thomas’s own admission, the power of the Roberts court dies the moment there are more liberals on the bench than Republicans. That could happen as soon as the next presidential election, if Democrats get their act together to take control of the Supreme Court. If stare decisis is dead, then it’s dead forever. What can’t happen is for future Democratic justices to try to resurrect it, to preserve the power of the people who killed it.

Clarence Thomas will soon be the longest-serving justice in American history. It’s good to know that he thinks his opinions will not matter after he’s dead. On that, he and I agree.