Constitutionalism a la carte

I've written before that constitutionalists, originalists and so-called strict constructionists are trying to force the constitution into such a tight mold that it is functionally ineffective.  But that's not the only problem. These ideologues have a tendency to cherry pick.  Their judicial opinions often appear almost arbitrary in terms of application of an ideology.  Their arbitrariness allows them great discretion to the point where they can rewrite the constitution by choosing when to acknowledge the rights it grants the people and when to shut their eyes to those rights.

In yet another example of why originalists are full of beans - please see the Clarence Thomas dissent in  the June 27 decision on  Brown v Entertainment Merchants Association.

California wanted to ban the sale of very violent video games to young children.   The video game vendors sued.  The Supreme Court supported the vendors.  J. Scalia, who claims to be an originalist, does actually stick to literal text of the first amendment when writing for the majority.  They find the violent video games worthy of free speech protection - beyond the reach of parents seeking to protect their children (by penalizing merchants who would sell these games to minors).  Scalia notes the video games often are like stories, with characters, plots, themes and ideas.    Scalia writes: "Like the protected books, plays, and movies
that preceded them, video games communicate ideas—and
even social messages." California tries to find safe harbor for the law in obscenity restrictions. Historically obscenity is considered unprotected speech. But Scalia thinks only sexual matters should fall under the obscenity category. Violence in itself is not obscene.
All this is nice and good.


But it's too much for Clarence Thomas to stomach.

He thinks the justices should be more concerned with the rights of parents to protect their children from noxious influences than be attentive to the ideas inherent in the video games themselves. He concludes:
“The freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.  He says this as if children were owned by their parents, as if children were property.   If we accept his conclusion, the First Amendment does not apply to children.  It sounds good, but it's dangerously arbitrary. This kind of thinking would set precedent for parents to restrict their children from exposure to other ideas. What if these video games were promoting revolution, or evolution? Thomas gives parents absolute, unfettered power to censor the information that reaches their children.  It's a power many parents crave -but is it fair to children? Is it constitutional? Thomas thinks so.  He supports his position with history books about parenting and writes: "Parents had total authority over what their children
read."  He notes the constitution prevents minors from voting or serving on juries. His examples are inapposite. Jury duty and voting involve making decisions about the Republic's future. Playing a video game is not making a decision about the nation's future - but sometimes playing a video game can expose a young mind to new ideas. One creative programmer designed a nifty game about terrorism. The player shoots and kills as many terrorists as he can - but every time he kills a terrorist, more terrorists spring out to replace the deceased. This free video game is violent - but it conveys an important idea - that killing terrorists simply breeds more terrorists and that violence is not an effective solution to terrorism.   Under Clarence Thomas' interpretation of the First Amendment - minors might not have the freedom to play a game like that, or be exposed to an idea like that.


Thomas professes to take the constitution literally - to refuse to read into it - but he butted heads with Scalia about whether free speech that depicts violence qualifies for protection.  Thomas said the founders always contemplated that parents could protect their children from harm and the ban on violent video games fell into that safe harbor. Personally, I agree with that assessment. But there is no way that can be considered "originalism."   The founders did not write any clauses with exceptions into the First Amendment, but somehow Thomas has found them.  These exceptions to free speech protection are not in the constitution, they are in Thomas' own conceptions of right and wrong, his personal conceptions based on society's values. This is exactly what he professes to oppose.

It's even more amusing that other members of the court's conservative wing use the same tack as Thomas - even though they concur with the majority.  They arrive at the same conclusion using a different strategy, they argue that California did not give constitutents proper notice and would strike down the ban on those grounds.  But part of their strategy involves looking at the matter through historical lens - not simply taking the text of the First Amendment literally.


J. Alito writes, "For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is
widely available to minors."

The best critique I've seen comes from Garrett Epps in The Atlantic. (Link here)  Here's an excerpt from the article:


"In nine cases out of ten, "originalists" are the ones employing free-form interpretive techniques, applying them to carefully selected historical materials rather than to the text and structure of the Constitution. The result is a claim that ancestral voices have told them how to resolve present legal disputes.  Justice Thomas's dissent should stand, for a while, as the most egregious example of this voices-in-my-head originalism."

What Epps is too nice to say (but I'm not) is that originalists are usually arbitrary and often render arbitrary opinions. The only thread of consistency is that their opinions are consistent with their personal values, quirks and personalities.

Is Clarence Thomas Above the Law?

      Challenges to the nation's most significant attempt at universal health care, the Patient Protection and Affordable Care Act, will soon arrive at the steps of the Supreme Court. That presents a problem for at least one sitting justice. 

     Based on a number of recent reports and disclosures, Associate Justice Clarence Thomas could be facing potentially serious consequences if he does not recuse himself from deciding on the health reform law. Thomas  has not reported his wife's earnings in her lobbying efforts against this particular law. He had not reported noninvestment income earned by Virginia Lamp Thomas(which added up to more than $1 million) for years on required disclosure documents.  Thomas filed amended disclosure forms for the years 2009 to 1989 in Jan. 2011 shortly after Common Cause asked Attorney General Holder to investigate.  

     Thomas filed amended financial disclosure forms for 2010 on May 27, just before the Memorial Day weekend - when the press corps off to their beach barbecues.

     Thomas' 2010 disclosure form describes him as an investor in Liberty Consulting - his wife's group. But it does not say how much he invested in it - or how much she earned.  This is why Congressman Weiner was needling Thomas on Twitter about the disclosures just before Memorial Day weekend.   Weiner's questions were based on the research Common Cause did on Thomas' disclosure forms and his wife's lobbying. What Common Cause found set in motion a number of complaints by citizens and legislators, but strangely, not by the courts. Is it strange, though, considering that Thomas is, effectively, their boss.

     Common Cause filed a complaint in January based on a section of law governing judges and conflicts of interest: 28 U.S.C. § 455 which states:

a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;

     § 455 (b)(4) specifically expands potential conflict of interest to cases that could bring financial benefit to the spouse or child of a judge. The Ethics in Government Act (5 U.S.C. § 102(e)(1)(A)) also requires federal officials, including Supreme Court justices, to disclose spousal income.  

     Virginia Thomas earned more than $680,000 between 2003 and 2007 from Heritage Foundation and Clarence Thomas reported his spouse had no noninvestment income in his financial disclosure forms. She received more than $500,000 when she started Liberty Central and fought health care reform - but he didn't report that income either.(LA Times story here)  Common Cause made public its complaint on Jan. 11 and Thomas filed amended financial disclosures from 1989 to 2009 - 20 years of disclosures - on Jan. 22, 2011. Jonathan Turley, a law professor at George Washington University, conferred with Common Cause about Thomas' issue and raised concerns about potential violations to Government Ethics Act. He wrote about some of his concerns in the LA Times.

     When U.S. Rep. Anthony Weiner started needling Thomas on Twitter about Thomas' discrepancies in financial reporting at the end of May - he was immediately pounced on by Andrew Breitbart over sexual shenanigans. (You can still see Weiner's appeal to the public over Clarence Thomas on his congressional web page.  Dave's Corner Tavern sums up the situation beautifully in a post called  "While You Were Sleeping.").  The largest media outlets focused on the more sordid story about sexting. Weiner sexted. He lied about sexting. He's sorry about both. Weiner's case has no bearing on the viability of rule of law in the United States.

     I'm much more interested in the issue Rep. Weiner raised before he was so unfortunately distracted from his mission. Others that have raised the issue include Common Cause and a watchdog group called Protectourelections.org.  In addition to Weiner, 73 members of Congress signed a letter recommending Thomas recuse himself from any decisions on the Patient Protection and Affordable Care Act because of his conflicts of interest.

     On February 8, 2011, Protectourelections.org filed a complaint with the Board of Responsibility of the Washington, DC Court of Appeals alleging professional misconduct by Thomas.  Protectourelections.org alleged that Thomas did not truthfully report his wife's noninvestment earnings on AO Financial Disclosure Forms and made decisions that benefited his wife financially. 

     A Twitter petition has emerged from Orange County, Calif. calling on House Minority Leader Nancy Pelosi to initiate congressional hearings on Thomas' alleged financial reporting discrepancies. You can sign the petition here.

     Protect Our Elections bases its complaint on ethics law and the state rules of conduct for attorneys. Lawyers are required to report colleagues for professional misconduct under the Rules of Professional Conduct for each state.  Under the Rules of Professional Conduct, misconduct misconduct cannot be overlooked - not even by friends and close associates. Lawyers who decline to file complaints about misconduct have been sanctioned for their failure to incriminate their colleagues. This is serious business. 

     The text of the Protect Our Elections complaint is as follows: "Clarence Thomas breached his legal duty and violated the D.C. Rules of Professional Conduct by knowingly and willfully failing for 20 years to state truthfully on required AO 10 Financial Disclosure Forms that his wife Virginia earned non-investment income.  Clarence Thomas further made rulings that his wife benefited from financially and professionally, and by extension, that benefited him.  In short, this unethical and criminal conduct violates the Rules of Professional Conduct, and undermines the rule of law, respect for the law and confidence in the law."

     Protectourelections.org says Thomas didn't disclose his wife's income for 20 years. Part of that income was from lobbying against the Affordable Care Act as unconstitutional.  Constitutional cases, of course, end up at the Supreme Court.

     Is it a crime for a sitting judge to make decisions that financially benefit his wife and not disclose his wife's wages in mandatory financial reports?

     If so, can the American system of justice survive a gross violation on our highest court. Do the sitting justices of the Supreme Court know about this. If it is so, how do they preserve the integrity of our legal system?

    Maybe Clarence Thomas really didn't know what he was doing or what laws he was breaking. But this seems like Ethics 101.Thomas' wife, Virginia, received more than a de minimis amount. According to the complaint: 

Virginia Thomas has received non-investment income since l989, and she worked at the Heritage Foundation from 2003 through 2009, earning at least $120,000 each year,
according to the foundation's IRS Form 990s.
She then went to work for Liberty Central in a paid position.
http://www.nytimes.com/2010/10/09/us/politics/09thomas.html Exhibit 12 She has now
launched a new consulting service called Liberty Consulting Inc.
http://www.rawstory.com/rs/2011/02/justices-wife-ambassador-tea-party/ Exhibit 13."

      All of these positions listed as held by Virginia Thomas are essentially lobbying. She specifically lobbied against the Affordable Care Act - the country's first attempt to make health insurance universal.  Now several cases on the constitutionality of the Affordable Care Act are winding their way up to the Supreme Court. 

    The complainant in this case argues Thomas cannot be impartial:  "it appears that Justice Thomas had a reason for not disclosing that his wife was working for a conservative think tank and a conservative 501c(4) group; he did not want litigants who had cases pending before the Supreme Court to have information that could be used to disqualify him from hearing those cases, and he wanted his family to benefit financially from his decisions. "

     This is not the first time questions of this nature have been raised in regard to Thomas.  In 2009, when the Supreme Court was deciding Citizens United, Thomas' wife's Liberty Central (which she created) received a $550,000 donation. She did not disclose the identity of the donor. The court ruled in favor of Citizens United. Common Cause asked Attorney General Eric Holder to investigate several issues related to the case. It had concerns about the discrepancies in Thomas' financial reports about his wife's earnings and concerns about his impartiality along with that of Associate Justice Anthony Scalia.  The group chargd that both Scalia and Thomas were allegedly participating in political strategy sessions to help Citizens United. 

     The letter Common Cause sent to Holder specifically identified how Citizens United enabled Mrs.Thomas to receive more funding for the group she started:

     "The Supreme Court’s decision in Citizens United, issued on January 21, 2010, provided a substantial benefit to Liberty Central while Ms. Thomas was its CEO by enabling it to raise and spend corporate funds directly advocating the defeat or election of political candidates for the first time in more than 60 years. According to a story in the Los Angeles Times, Ms. Thomas stated that Liberty Central “would accept donations from various sources – including corporations – as allowed under campaign finance rules recently loosened by the Supreme Court.”

     The private funding for that organization was considerable.  The statement above shows Ms. Thomas acknowledging she will receive a personal financial benefit from a case which her husband decided.  That's not all. Later Thomas invested in that same group.  A blogger at Theoldredneckspeaks.blogspot.com points out that she started the group based on her belief that she would be able to get money for it because of the outcome of Citizens United - he describes as "judicial insider trading."

     That's a troubling concept. One I had not considered before. Thomas' lack of candor with regard to his wife's finances has raised some very unsettling issues. These go beyond his personal views.  They go to honor of our judicial system.  In a nation with rule of law, we need to be able to trust the integrity of our courts.  Is Clarence Thomas above the law?