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The dangers of underestimating Clarence Thomas

One of the more common caricatures of Justice Clarence Thomas portrays him as Justice Antonin Scalia’s darker-hued doppelganger, with Scalia assumed to be the dominant partner. But progressives would be foolish to underestimate Thomas, whose envelope-pushing separate opinions have had a way of becoming the Court majority’s position eventually.

  • His obscure concurring opinion in a 1997 case concerning a provision of the Brady Law set forth an individual-rights view of the Second Amendment that was scorned even by many conservatives at the time. Roughly a decade later, the Court had adopted his position.
  • His preference for laissez-faire in campaign finance law, extending even to invalidating disclosure requirements on First Amendment grounds, has not yet become the Court’s position, but given the Roberts Court majority’s equation of money with speech and its narrow definition of corruption, it might once the right case comes before the Court.
  • Most recently, his claim that the First Amendment’s Establishment Clause only prohibits the establishment of a national religion, and does not preclude state and local governments from supporting sectarian religious expression, was not the position adopted by the Roberts Court in Town of Greece v. Galloway, decided earlier this month. But Thomas’s position could eventually prevail, as Justice Anthony Kennedy’s majority opinion undercut the Court’s prior position in two ways.

    First, it undermined the idea that government support for religious expression should not display favoritism toward any particular faith. Whether or not one believes that the First Amendment erects a “wall of separation” between church and state, one could identify a rough legal consensus that overt government favoritism toward a particular faith portends political divisiveness. However, the Court’s willingness to uphold the almost exclusively Christian prayers opening town meetings in Greece, New York–the only exceptions came immediately after the town was sued–implied that de facto discrimination on behalf of favored beliefs will be overlooked. Kennedy’s opinion did state that prayers that condemn other faiths or overtly proselytize would be out of bounds, but it’s unclear why the Court would choose to draw the line there. After all, the opinion also stated that allowing only nonsectarian prayers would require excessive government entanglement in religious practice, as courts would have to determine whether the prayer was explicitly sectarian or simply beseeching a generic supreme being.

    Second, while Kennedy’s opinion used the “coercion” test for determining whether government involvement in religion violates the First Amendment, it defined coercion in a way that fails to recognize the backdrop against which government-sponsored prayer occurs. Kennedy distinguished the Greece town council prayers from benedictions at public school commencements by reference to the audience for the prayer (adults vs. groups including minors) and the degree to which that audience was captive. But in an important sense, the audience at Greece’s town council meetings has more to lose from religious dissent than does the audience at a commencement. Students who choose not to rise in prayer, or who leave the auditorium during a benediction, suffer a symbolic harm, in that they are made to feel like outsiders in their community. Religious dissenters attending town council meetings suffer this symbolic harm as well, but they also potentially suffer more tangible harms. Many people attend such meetings in order to petition their local government on such matters as zoning variances and expedited handling of license requests. Can a citizen feel confident that her request will be handled fairly once she has singled herself out as a dissenter? If not, and she values the item representing her reason for appearing at the meeting, will she not opt to make the appearance of participating in the prayer? Any definition of coercion that does not recognize this scenario as coercive is not a definition that will constrain government sponsorship of sectarian religion. As such, Thomas’s vision could be realized without the Court’s having to adopt it explicitly.

In short, Thomas has been a bellwether of where movement conservatives want constitutional law to go, and progressives who prefer to dismiss him would be better served by confronting his ideas head-on. The likelihood that the next president will have multiple vacancies to fill on the Court should provide sufficient motivation to launch such an effort.




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