Could Assoc. Jus. Clarence Thomas Be a Wild Card on Roe v. Wade?

[Jim_B]

I think we all remember or have heard about the big fiasco surrounding ultraconservative Clarence Thomas’ nomination and eventual appointment to the U.S Supreme Court. Anita Hill claimed she was sexually harrassed by Thomas, raising question about his fitness for the position. But Thomas was still approved, albeit by a very narrow margin in the Judiciary committee and Senate, which was then controlled by the opposing party (probably the last time that will happen, but I digress).

The only thing is, once a person is on the Supreme Court, there is no telling what they will do, or how their philosophies will change (it is a life-long position, with the [unlikely] option of impeachment being the only way to forcible remove them). Of course Thomas, like Scalia and Rehnquist, is so set in his far-rightwing philosophies, that everyone knows he probably will never change. However…

I have heard, mostly from scattered news reports here and there, that Thomas is beginning to break away from Scalia and Rehnquist, if only a little now. All that I know is that he seems to usually vote with the more liberal wing of the court on matters of pornography (yeah, big surprise there;) ). And he also has voted on something to do with police knocking first before they serve a searching warrant:confused: , which has surprised alot of people for some reason. So…

Is there a chance, however remote, that Mr. Thomas might break away completely from the far rightwing, and vote for Roe v. Wade? I know for a diehard liberal like me, there is almost a humorous aspect to this–Thomas becoming the Pro-Choice people’s greatest friend, when they worked so hard to oppose him, and the other side ironically worked so hard to get him to where he is.

Does anyone with any knowledge in this area have any thoughts on this? Or at the very least, does anyone know exactly how Justice Thomas has surprised even his critics? As I’ve said, I have heard this from some credible media sources.

[jshore]

Well, I suppose that there is a chance that anything can happen. But, my impression is that Thomas has made it very clear, in abortion cases before the Court so far, how he feels about Roe v. Wade. [Others who are better at researching Supreme Court cases can probably come up with quotes confirming this.] So, it would have to be quite a conversion.

[jshore]

Here from the 1992 opinion of Rehnquist, joined by White, Scalia, and Thomas is an unambiguous statement about how they felt at least at that time:

The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, 410 U.S. 113 (1973), but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.

Now, who knows, maybe when the chips are really down, Thomas will blink. But, Jim B., I think that to believe this is anything other than a remote possibility is to be quite an optimist.

[Polycarp]

One would have to be intentionally purblind to refuse to recognize that the justices are sometimes moved by political considerations. However, as a general principle, their views are shaped by their philosophies of constitutional law and how they see that as applying to the particular cases before them – with a slight admixture of desire to see justice done if they can do so without establishing a precedent they feel undesirable.

As a practical matter, Roe v. Wade is “a bad decision” – not in its impacts on society, to be sure, but in its extreme Brandeisism, placing social impacts on a plane with constitutional principles. It draws heavily on a presumption of inherent rights not defined and nowhere delimited.

This can be justified, particularly in circumstances where the integrity of the individual is concerned, under the provisions of the Ninth and Fourteenth Amendments. But to do so is to “create rights” in the view of conservatives, and two schools of jurisprudential philosophy are loath to do so – even though their practitioners may be strongly liberal politically.

Justice Thomas has been very taciturn outside his assigned opinions, but it is clear from his opinions and votes that he is a textualist with similar views to Justice Scalia. There are, to be sure, times when he reads the text with a different twist than the extremely conservative Scalia, and votes on the opposite side. But they share the same basic philosophy on constitutional interpretation.

For this reason, I think it highly unlikely that Thomas would “convert” to a pro-Roe v. Wade stance. He might, however, be convinced to buy into an argument which founds a woman’s right to terminate a pregnancy on one of the broad-language guarantees of rights in the Constitutional text, notably the Fourteenth Amendment, if such an opinion is carefully crafted to demonstrate that the “right to abort” is a special case of a right clearly contemplated in the guarantees that rights will not be abridged that are written in very broad language.

Dewey can explain this line of thinking better than I. I hope he responds to this thread.

[jshore]

Here by the way is a news story about what I imagine is the pornography decision that you refer to. While it is true that Thomas broke away from Rehnquist and Scalia in this one, he didn’t exactly side with the liberals/moderates either. He sort of went for a middle ground. This doesn’t provide that much evidence to me that he would break away from them on Roe v. Wade…although it is nice to see a case where he is willing to arrive at a different conclusion than both Scalia and Rehnquist. (Does anyone know how many cases there have been where Thomas has been on the opposite side from both of these folks?)

As for the police knocking rule, I found two cases related to that but both were decided unanimously. In one back in 1996, Thomas did wrote the Court opinion. Here is one take on the opinion:

On May 22, 1995, the Supreme Court unanimously ruled that “in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment.” This is not quite a path-breaking decision — any more so than if the Court announced that “in some circumstances the seizure of a citizen’s property might be unreasonable under the Fifth Amendment.” The opinion, written by Justice Clarence Thomas, noted: “For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable.” The Court essentially punted on the issue — though it did at least avoid swallowing the authoritarian arguments of Arkansas. Unfortunately, the Court did not address the issue of no-knock searches in pursuit of small amounts of drugs.

In the other case, just last month, the unanimous Court ruled "police need not wait more than 15 or 20 seconds after knocking before they break down a door and search the residence for drugs. (Souter wrote the opinion.) So, in these two cases, Thomas was in agreement with Rehnquist and Scalia (and everyone else on the Court for that matter).

[HumanStromboli]

*Originally posted by Polycarp *
For this reason, I think it highly unlikely that Thomas would “convert” to a pro-Roe v. Wade stance. He might, however, be convinced to buy into an argument which founds a woman’s right to terminate a pregnancy on one of the broad-language guarantees of rights in the Constitutional text, notably the Fourteenth Amendment, if such an opinion is carefully crafted to demonstrate that the “right to abort” is a special case of a right clearly contemplated in the guarantees that rights will not be abridged that are written in very broad language.

I don’t see any reason even to label this as a might. His separate dissent in Lawrence, coupled with his joining of Scalia’s dissent (IIRC) in the same matter, pretty well stakes out his position at present on the topic in general, I would think.

[Dewey_Cheatem_Undhow]

*Originally posted by Polycarp *
This can be justified, particularly in circumstances where the integrity of the individual is concerned, under the provisions of the Ninth and Fourteenth Amendments. But to do so is to “create rights” in the view of conservatives, and two schools of jurisprudential philosophy are loath to do so – even though their practitioners may be strongly liberal politically.

I know you’re a big fan of the Ninth, but let’s be clear: it has never been found to be the sole source of any substantive right. The Griswold majority (upon which Roe is built) found that there are “emanations and penumbras” created by multiple amendments, of which one is the Ninth (the others are the First, Third, Fourth and Fifth Amendments). Of the seven-member majority, only Goldberg, Warren and Brennan thought the “Ninth Amendment alone” theory worth pursuing.

Black’s dissent in Griswold is a more eloquent illustration of why both this view and the penumbral view are fallacious than anything I could write. **

Justice Thomas has been very taciturn outside his assigned opinions, but it is clear from his opinions and votes that he is a textualist with similar views to Justice Scalia. There are, to be sure, times when he reads the text with a different twist than the extremely conservative Scalia, and votes on the opposite side. But they share the same basic philosophy on constitutional interpretation.**

I would have considered Thomas more of an originalist than a textualist. **

Dewey can explain this line of thinking better than I. I hope he responds to this thread. **

You want me to explain the inexplicable? You think too highly of me.

Here’s my best shot at an explantion of penumbral theory: the constitution, being a stubbornly inanimate object, won’t amend itself, so the judiciary has taken it upon their shoulders to help it along, and nevermind all that stuff about supermajorities in Congress and state ratifications. It’s the triumph of hope over reason – essentially, the judiciary saying “the constitution doesn’t actually say this, but jeepers, it should.”