# Who's your favorite US Supreme Court Justice, and why? **URL:** \ **Category:** Great Debates\ **Created:** [June 1, 2013, 4:08pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869 "2013-06-01T16:08:48Z")\ **Posts on this page:** 18\ **Page:** 4
**Author:** ![Mr\_Quatro](https://avatars.discourse-cdn.com/v4/letter/m/bc8723/32.png) [@Mr\_Quatro](https://boards.straightdope.com/u/Mr_Quatro)\ **Post date:** [June 8, 2013, 5:36pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/61 "2013-06-08T17:36:30Z")
Justice Thomas doesn’t talk anymore: [http://abcnews.go.com/blogs/politics/2012/03/545532/](http://abcnews.go.com/blogs/politics/2012/03/545532/) I would tend to think that Justice Thomas doesn’t like to be judged himself by public opinion. > [@](#): > > As the Supreme Court Justices today fired questions on the ‘Obamacare‘ mandate across the bench, one voice was notably – but perhaps predictably – silent. So far every Justice on the bench has spoken up on the health care law except for one: Justice Clarence Thomas. > > Indeed, if you search today’s 126-page transcript of arguments, you won’t find Thomas’ name a single time. > > It has now been six years since the Justice has asked questions during oral arguments, although he certainly has read his opinions from the bench in his robust baritone. > > Thomas has said that he goes into the oral argument sessions knowing how he will decide a case so he doesn’t ask questions. > > “I refuse to participate. I don’t like it, so I don’t do it,” he said in 2009, according to The Associated Press. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 8, 2013, 7:01pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/62 "2013-06-08T19:01:25Z")
> [@adaher](#): > > I’ll agree that he’s activist, but I’ve never seen an opinion of his that was troubling in that fashion. My only criticism of Thomas is that he’s got a bug up his ass about homosexuality and made a terrible decision in Lawrence v. Texas. If you are an activist who tries to undo activism and return things to their original state, then you aren’t really an activist? 🙂 The only difference between Thomas and others with regards to stare decisis is that he is honest about it. Everyone else tries to “distinguish” the facts of this case so that it isn’t really overturning past precedent, although it obviously is. Technically Plessy v. Ferguson is still controlling law, it’s just that all segregation is inherently unequal. Hell, 6 justices in the case you mentioned (Lawrence v. Texas) had no concern for stare decisis when they overruled Bowers decided less than 20 years before. If respect for precedent is so important, shouldn’t that case have been a 9-0 upholding the sodomy law? Further, I didn’t get the impression that Thomas hates homosexuals. He stated in his separate dissent that he thought the Texas law was “uncommonly silly” and that if he were a member of the Texas legislature, he would vote to repeal it. But he noted, IMHO quite correctly, that it was absurd to say that the constitution prohibited sodomy laws when they have been around since ancient times. If there is a sea change in public opinion that skews towards making sodomy legal, then the legislature is the place for that…and it was working. 50 states had sodomy laws in 1960, and only a handful had them at the time of Lawrence. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [June 8, 2013, 7:16pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/63 "2013-06-08T19:16:06Z")
> [@jtgain](#): > > Technically Plessy v. Ferguson is still controlling law.. Not according to my source. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 8, 2013, 7:19pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/64 "2013-06-08T19:19:28Z")
> [@Hamlet](#): > > You’re untroubled by his belief that the Establishment Clause does not apply to the states? Or that the entirety of substantive due process needs to be overruled? Or that the federal government should have nothing to do with desegregation? In fairness, Thomas wants to reincorporate most of the Bill of Rights via the Privileges and Immunities Clause, which frankly makes much more sense than incorporation via the Due Process Clause. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 8, 2013, 8:08pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/65 "2013-06-08T20:08:03Z")
> [@Really\_Not\_All\_That\_Bright](#): > > In fairness, Thomas wants to reincorporate most of the Bill of Rights via the Privileges and Immunities Clause, which frankly makes much more sense than incorporation via the Due Process Clause. The only right I’ve seen him write to “reincorporate” is the right to bear arms for citizens. I would be very surprised indeed if he would ever find unenumerated rights like the right to medical decision-making, right to privacy, reproductive freedom, right to travel, right to death, and others, to be protected by the Privileges and Immunities Clause. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [June 9, 2013, 1:55am UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/66 "2013-06-09T01:55:16Z")
That’s been a problem for me with conservative justices. The 9th amendment is pretty clear that our rights are not limited by the Constitution, only the government’s powers are. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 9, 2013, 9:08pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/67 "2013-06-09T21:08:33Z")
> [@adaher](#): > > That’s been a problem for me with conservative justices. The 9th amendment is pretty clear that our rights are not limited by the Constitution, only the government’s powers are. I agree, but to use the 9th amendment with any substance would just open a Pandora’s box. A right to jerk off in public? Well, 9th amendment. Throw hand grenades on your own private property? That’s a 9th amendment. Cut down my oak tree with fully automatic BAR fire? You KNOW that’s a 9th amendment. The Court would have to come up with some limiting mechanism for the 9th amendment, which would probably be at the limit of the substantive due process of the 14th amendment. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 9, 2013, 11:38pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/68 "2013-06-09T23:38:05Z")
> [@Hamlet](#): > > The only right I’ve seen him write to “reincorporate” is the right to bear arms for citizens. I would be very surprised indeed if he would ever find unenumerated rights like the right to medical decision-making, right to privacy, reproductive freedom, right to travel, right to death, and others, to be protected by the Privileges and Immunities Clause. The right to travel has already been found one of the privileges and immunities of citizens. In fact, it’s just about the only thing that has. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [June 9, 2013, 11:49pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/69 "2013-06-09T23:49:13Z")
> [@lawbuff](#): > > Not according to my source. I don’t think I’ve ever heard anyone insist that Plessy v. Ferguson was still in force. I think it was explicitly overturned by Brown. You might as well argue that Bowers v. Hardwick is still in effect. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [June 10, 2013, 3:27am UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/70 "2013-06-10T03:27:23Z")
> [@jtgain](#): > > I agree, but to use the 9th amendment with any substance would just open a Pandora’s box. A right to jerk off in public? Well, 9th amendment. Throw hand grenades on your own private property? That’s a 9th amendment. Cut down my oak tree with fully automatic BAR fire? You KNOW that’s a 9th amendment. > > The Court would have to come up with some limiting mechanism for the 9th amendment, which would probably be at the limit of the substantive due process of the 14th amendment. The limiting mechanism would be that the citizens’ rights end where the governments’ enumerated powers begin. SCOTUS has in the past upheld a right to enter into voluntary contracts. But Congress under its commerce power can regulate such contracts. Privacy has also been established as a right, but I think the courts are still confused on that one. For example, why is it an absolute right in regards to abortion, but not say, your finances? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [June 10, 2013, 3:29am UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/71 "2013-06-10T03:29:00Z")
> [@Ibn\_Warraq](#): > > I don’t think I’ve ever heard anyone insist that Plessy v. Ferguson was still in force. > > I think it was explicitly overturned by Brown. > > You might as well argue that Bowers v. Hardwick is still in effect. Separate but equal is still legal in regards to gender. It was overturned for race because there was no equality. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 10, 2013, 1:16pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/72 "2013-06-10T13:16:16Z")
> [@adaher](#): > > Privacy has also been established as a right, but I think the courts are still confused on that one. For example, why is it an absolute right in regards to abortion, but not say, your finances? It’s not an absolute right in either case. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [June 10, 2013, 1:43pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/73 "2013-06-10T13:43:20Z")
> [@Ibn\_Warraq](#): > > I don’t think I’ve ever heard anyone insist that Plessy v. Ferguson was still in force. > > I think it was explicitly overturned by Brown. According to my source, Brown did not overturn it, another case did. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 10, 2013, 2:03pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/74 "2013-06-10T14:03:35Z")
Yep. This is the difference between high school and college courses touching on constitutional law and law school con law. It’s virtually an article of faith at lower levels that _Brown_ overturned _Plessy_ - though this error is common at higher levels, too. In fact, the Westlaw KeyCite for _Plessy_ even says it was overturned by _Brown_. _Plessy_ stood for the proposition that segregation of passenger railcars was permissible as long as equal facilities were provided in black railcars. _Plessy_’s holding was effectively expanded to education by _Cumming v. Richmond County Board of Education_ (175 U.S. 528 (1899)). In that case, the county operated schools only for whites (there were no black schools at all), and the petitioners asked for an injunction allowing black children to attend the schools too. The Court said no, deferring to the state court, but noted that the outcome might have been different if they demanded that separate schools be opened for blacks. The _Brown_ holding was merely that segregation was impermissible in the context of public education. So _Brown_ explicitly overruled _Cumming_, not _Plessy_. _Plessy_ was effectively overruled by passage of the Civil Rights Act and _Heart of Atlanta Motel._ ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [June 10, 2013, 2:14pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/75 "2013-06-10T14:14:50Z")
> [@Really\_Not\_All\_That\_Bright](#): > > _Plessy_ was effectively overruled by passage of the Civil Rights Act and _Heart of Atlanta Motel._ My source says this case overruled Plessy, Gayle v. Browder, 352 U.S. 903 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 10, 2013, 2:37pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/76 "2013-06-10T14:37:59Z")
What is this mysterious source you keep referring to? _Gayle_ was the first time SCOTUS applied Brown to public transit but it was also a per curiam decision in which the opinion consisted of three bare citations, so it’s hard to call it controlling law. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [June 10, 2013, 2:41pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/77 "2013-06-10T14:41:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What is this mysterious source you keep referring to? _Gayle_ was the first time SCOTUS applied Brown to public transit but it was also a per curiam decision in which the opinion consisted of three bare citations, so it’s hard to call it controlling law. Gayle is at 91, the Cumming case you cite, and are correct, is at 89. > **[Constitution of the United States of America: Analysis, and Interpretation -...](https://www.govinfo.gov/content/pkg/GPO-CONAN-1992/html/GPO-CONAN-1992-13.htm)** ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 10, 2013, 2:48pm UTC](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869/78 "2013-06-10T14:48:25Z")
Oh, I remember you linking to that before. Handy. I should have bookmarked it. [Previous page](https://boards.straightdope.com/t/whos-your-favorite-us-supreme-court-justice-and-why/659869.md?page=3)