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Is Clarence Thomas headed out or just starting?



"It is one of the most important and consequential provisions in our country's history," said the first-change expert and supreme lawyer Theodore J. Boutrous of Gibson Dunn.

The silence of Thomas & # 39; s meaning hidden in a related case took over Boutrous and others.

There is even a whispering campaign among progressors, which 70-year-old justice is preparing to retire. The idea is that he had launched the statement – not joining any other justice – as a kind of last sage, as he was willing to refrain from his place for a younger Trump nominee.

But those close to Thomas saw something completely different.

For them, it was another opportunity for Thomas to plant seeds for the future in a legal area that he thinks deserves more attention.

They say the statement was less than a final salvo and more the creation of a new marker of justice that believes in rectifying what he sees as past mistakes, even though he speaks only.

And while there may not be Justice Thomas tattoos or tote bags or other swag that surrounds Ruth Bader Ginsburg, and he may lack votes at the Court to win the day after more than a quarter of a century on the bench he has established a veritable army of former churches and those he calls his "adopted clerks" who see the world and the law through a similar lens.

They find it hard to believe in withdrawal rumors, especially now that Thomas is having a recently strengthened conservative majority and in some ways hitting a new fight.

New York Times by Sullivan

In his statement on Tuesday ̵

1; which was technically a coincidence with a denial of cert in a speech-related case – Thomas complained during the Court's first amendment " public figures are excluded from recovering damages for defamation unless they can demonstrate that the disputed statement has been made with "real malice" – that is, knowing that it was erroneous or inconsistent in whether it was wrong or not ."

Governments submit to the applicants an almost "impossible standard", wrote Thomas, and that instead of "simply applying" the first amendment as understood by the people who ratified it, the Court had driven into the realm of politics and formed its own rule.

"We should not continue to apply this policy-driven approach to the Constitution," he said.

  READ: Justice Clarence Thomass Opinion on Landmark Criticism First Amendment Case

His opinion is based on the original philosophy of originism, a theory also characterized by late justice Antonin Scalia.

But while in public speaking, Scalia could be critical of the New York Times by Sullivan, he never wrote a meaning like Thomas & # 39; perhaps out of respect for precedent.

Boutrous believes that if Thomas puts a marker, it was dangerous.

"If this view were to prevail, it would be a dramatic break in our democratic system because the New York Times v. Sullivan stands for the fundamental principle that citizens should be able to speak without fear of punishment in civil law, especially when criticizes public figures and discusses issues of public importance, "he said.

Placing markers

Adherents of Thomas, as conservative lawyer Charles J. Cooper, say that Tuesday's opinion is an extension of his case law and reflects the fact that he has often shown a spotlight in an area of ​​law that worries him.

"Thomas & # 39; uniform assent, in which he formulated known originalist concerns about the accuracy of the New York Times v. Sullivan, is a piece with his case law over the past two decades," Cooper said.

"There is simply no need to doubt that Justice Thomas will continue to raise his concerns about the accuracy of previous court decisions, no matter how scary they may be in certain quarters," added Cooper.

Cooper points to early statements Thomas wrote aimed at the constitution of bureaucracy, commonly referred to as the administrative state.

During 2014-2015, Thomas addressed three opinions on the issue.

For Thomas, when Congress delegates its powers to federal agencies, they give these agencies too much power with too little accountability. As Thomas puts it in the Department of Transportation of the Association of American Railroads, the fight is about "the proper division between legislative and executive powers."

  Justice Clarence Thomas calls for a reassessment of landmark cases

"An examination of the history of these powers reveals how far our modern legal behavioral competences differ from the original meaning of the constitution "he wrote.

In 2015, Cooper wrote to the National Affairs magazine, "Only Justice Thomas has consistently questioned the constitution of the modern administrative state."

Today, the issue has won steam and becomes a flashpoint in Washington and an initiative of the Trump administration.

In fact, a former Thomas clerk, Neomi Rao, serves as the administrator of the Office of Information and Regulatory Affairs. It is a lesser known entity within the Office of the White House's Office of Management and Budget, which is responsible for ensuring that federal agencies comply with the law and act consistently with the administration's policies. In short, Rao serves as President Donald Trump's CSAR for legislative recalls.

She is also nominated for the US District Court of Columbia Circuit, a breeding ground for future justice.

Thomas & # 39; Army

Washington is currently filled with Thomas & # 39; former churches and disciples.

Trump has nominated 11 former Thomas comrades to the courts. People like Gregory Katsas who served in the White House Counsel's Office and now sit on the United States Court of Appeals for the District of Columbia. And James C. Ho, a Trump nominee sitting on the Fifth Circuit.

There are former clerks at the White House Counseling Office, including Deputy Attorney Patrick F. Philbin and Kate Comerford Todd, head of the White House Counsel Patrick Cipollone's legal appointment process. Andrew Ferguson, another former clerk, was beaten to join the White House team, but instead he filled an opening as a nomination council for Senate chairman Lindsey Graham.

There are also "honorary" comrades – those close to Thomas who have never worked for him – like Alex Azar, who serves as the Health and Human Secretary, Senator Mike Lee, R-Utah, serving on the judiciary committee. Mark Paoletta, Secretary General of the Office of Management and Budget.

Jeff Wall, another clerk, is the US chief lawyer, arguing for the Supreme Court and helping to navigate the administration's appeal strategy.

And it's not just the government who makes a mark.

Carrie Severino serves as Chief Counsel for the Judicial Crisis Network, a group dedicated to supporting Trump's nominees. In December, her group launched a $ 1.5 million national cable and digital advertising campaign to confirm conservative judges.

Private practice William S. Consovoy is currently in the Boston Federal Government, challenging Harvard's use of races in access plans. A total of five former Thomas clerks are working on the effort that could ultimately turn it into the Supreme Court and cease precedent.

Of course, former clerks are not locking steps with Thomas's thinking, but the large number of Thomas & # 39; Clients currently serving in the administration are unusual.

That's not to say that Thomas has enough votes on the court for some of his opinions. But he is a prolific writer, even though he is alone, resembling justice William Rehnquist, before becoming superior in the mid-1980s.

It is almost impossible to get into a justice head on the question of retirement.

But one thing is clear: Thomas writes with the future in mind.


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