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Justice Clarence Thomas: Man of Strong Opinions Joan Swirsky
Book: The Supreme Court Opinions of Clarence Thomas, 1991-2006.
The political left has always held Supreme Court Justice Clarence Thomas in particular contempt for not embracing its agenda. Among the key issues are the sacred cows of affirmative action and abortion on demand, which are just two of the "rights" liberals claim the Constitution of the United States embodies.
Yet Thomas, a judicial scholar, has also been criticized by his detractors for rejecting their preconceived image of all black people as victims in need of governmental assistance. He has been assailed by unsubstantiated accusations by Anita Hill at his 1991 confirmation hearings; insulted by, among others, columnist Maureen Dowd of The New York Times; and just a couple of years ago judged harshly for his judicial opinions by the eminent constitutional "expert," Nevada Democrat Harry Reid.
Today, Thomas is still vilified by liberals who see him as a direct threat to their notion of a "living Constitution," the function of which they believe is to promote secular-progressive social policies over a strict interpretation of the Constitution, and thereby sound jurisprudence.
Author Holzer, a constitutional lawyer and professor emeritus at Brooklyn Law School, has now provided a scholarly and highly readable rebuttal to Thomas's critics, citing many of the 350 cases on which the jurist has deliberated and spelling out the reasoning, both philosophical and judicial, that has influenced his decisions. In doing so, Holzer has spared the reader "what others have reported about what Thomas has written," and instead relied on Thomas's "written dissents from, and concurrences with, majority opinions . . . [in] his own words."
According to Joseph Klein of Frontpagemagazine.com, Holzer's book "should make every one of Justice Thomas's Leftist critics immediately apologize for their lies about him (which, no doubt, they are too cowardly and intellectually dishonest to do.)"
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For people like me, unfamiliar with the complexities of constitutional law, Holzer mercifully presents a virtual roadmap of the Constitution, its amendments, and the Bill of Rights that our forefathers so ingeniously created more than two centuries ago. Further, he explains in clear, comprehensible language, the separation of powers among the Executive, the Legislative, and the Judiciary branches of government all of which serve to explain what he considers the "wisdom" of Justice Thomas's interpretations.
Mr. Holzer who is also the author of "Aid and Comfort: Jane Fonda in North Vietnam" and "Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service" (both co-authored with Erika Holzer) says that Justice Thomas is more an "originalist" than the justices with whom he now shares the bench, including the stalwart conservative Justice Antonin Scalia.
Originalism, Holzer explains, "is a method of interpreting the Constitution on the basis of what any given provision meant to the people who wrote it, whether the original Bill of Rights, the later Fourteenth Amendment, or any amendment since." The judges who interpret the Constitution, he adds, "aren't the ones who wrote it."
Thomas's rulings, Holzer says, fly in the face of the social agendas of the liberals who sit on today's Court Justices Ginsburg, Breyer, Stevens and Souter who Holzer calls "unelected philosopher kings and queens appointed for life." In contrast, Justice Thomas has "uncompromising fealty to those founding documents" and its core principles of federalism, limits on the power of the federal government in favor of states's rights, separation of powers, regard for individual liberties and judicial restraint for which "he deserves to be recognized as The Keeper of the Flame.'"
In case after case and with enthusiasm that reveals his own allegiance to and love for the bedrock principles of the Constitution Holzer explains Thomas's decisions, and often withers the jurist's critics with insight gleaned from his own prodigious study of each case. For instance, Thomas joined the majority in finding that Ohio's school voucher program did not violate the Establishment Clause of the First Amendment, or the due process clause of the Fourteenth Amendment, in spite of its impact on religious schools. Thomas's leftwing critics claimed that he was pandering to religious fundamentalists and acceding to states' rights.
But Holzer cites Thomas' concurring remarks in the decision, in which he quoted Frederick Douglass: "Education . . . means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light by which men can only be made free." Thomas then explained how the voucher program was true to Brown v. Board of Education in bringing quality education to minority students, and accused "progressives" of abusing the Establishment Clause by using it as a club against states that incorporated it into the Fourteenth Amendment's due process clause: "Converting the Fourteenth Amendment from a guarantee of opportunity to an obstacle against education reform distorts our constitutional values and disserves those in greatest need." Justice Thomas also dissented from the Court when it upheld restrictions on campaign contributions and expenditures in the Bipartisan Campaign Reform Act of 2002. Thomas called the Act "the most significant abridgment of the freedoms of speech and association since the Civil War," and noted the irony that the majority "on one hand holds that the marketplace of ideas should be fully open to flag burners, nude dancers and pornographers, but opposes unfettered participation in political campaigns on the dubious grounds of reducing the opportunity for corruption."
Today, in what Holzer calls "the arrogant judicial incursions into the war power of the commander-in-chief, the Supreme Court has held that enemy combatants are entitled to contest their status, to sue in American courts, to due process of law, to seek habeas corpus relief anywhere in the United States, and to be tried by military commissions only if they are approved by Congress (as they now have been, in the Military Commissions Act of 2006)."
Holzer, in citing the Hamdan v. Rumsfeld case, says that, "only Clarence Thomas fully understands that neither Congress nor the courts have an allowable constitutional role in micromanaging this or any President's conduct of war." In this case, the majority ruled that the President's military commissions were illegal.
In the current political climate, where a Democratic Party-controlled Congress is challenging the Constitutionally conferred and inarguable right of the president to determine the actions of U.S. armed forces, it is useful to note what Thomas wrote about the Court's opinion in the Hamdan case. That opinion, he said, "openly flouts our [the judiciary's] well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs." He went on to write: "The Court's evident belief that it is qualified to pass on the military necessity". . . of the Commander in Chief's decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered."
Thomas later wrote, "Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches [Congress and the President] that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict.
"We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the USS Cole, and the attacks of September 11 even if their plots are advanced to the very brink of fulfillment our military cannot charge those criminals with any offense against the laws of war.
"Instead, our troops must catch the terrorists red handed' . . . in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President's ability to confront and defeat a new and deadly enemy."
Holzer, in his comprehensive analysis of Thomas' Supreme Court decisions, soundly discards both the prejudices and malicious misrepresentations that have hounded Thomas for the past 15 years. His book is simply a must-read for legal eagles and the lay public alike.
© NewsMax 2007. All rights reserved.
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