The NYT reports on recent by remarks by Justice Clarence Thomas at the Stetson University College of Law in which he responded to criticism of the Court’s Citizens United ruling. In addition to defending the underlying rationale of the ruling, he also addressed the Tillman Act — the federal law barring corporate campaign contributions, which was not at issue in the case — and the role of precedent.
“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.” . . .
Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”
Justice Thomas also explained his absence at the State of the Union.
“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “there’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”
“One of the consequences,” he added in an apparent reference to last week’s address, “is now the court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.”
Widmerpool says:
Hmmm, might Justice Thomas also have a well-reasoned defense for why he does not ask questions during oral argument?
February 4, 2010, 10:25 amPer Son says:
Widmerpool:
He does, over and over. Basically, he thinks the other Justices often like to hear themselves ask questions rather than the answer, and he generally does not have anything to ask. Listen to some of his interviews on the subject on the Bryan Garner website.
February 4, 2010, 10:38 amMartinned says:
Hmmm. I’ve never heard of a Dutch judge doing such a thing. And I’m not even sure that I think this is a good idea. Presumably, the opinion itself contains all the defence that it needs. If not, they should write it better.
(Wasn’t Scalia’s argument for strict textualism with regard to statutes that a more teleological approach would make lawmakers lazy by failing to punish their vagueness?)
February 4, 2010, 10:41 amSteve Lubet says:
Thomas said:
Is there any actual support for that story, or any reason to believe that racial prejudice motivated other senators and congressman to pass the Tillman Act (or that racism motivated Teddy Roosevelt to sign it)?
February 4, 2010, 10:44 amPostscript says:
Here, Widmerpool
http://lmgtfy.com/?q=why+doesn%27t+%20justice+thomas+ask+questions+at+oral+argument
February 4, 2010, 10:47 amPatHMV says:
Steve Lubet: A brief read of Tillman’s Wikipedia article suggests that racial prejudice motivated just about everything he did in politics. You might also check out this article. See also here.
February 4, 2010, 10:57 amgeokstr says:
If you think that the world’s most reknowned writers could author a decision that would cause a leftist to abandon his religious dogma, well, the Murtha Unused International Airport is still available – cheap.
February 4, 2010, 11:04 amzuch says:
Oh, really? You mean like shouted out “You lie!” comments?
And why is Thomas so thin-skinned?
Cheers,
February 4, 2010, 11:09 amMartinned says:
From that point of view, what’s the point of defending it in an interview later? If you’re going to assume that no one is going to be convinced of anything ever anyway, you might as well write rulings like the French Conseil Constitutionnel: one page long.
February 4, 2010, 11:10 amzuch says:
The catcalls, the whooping and hollering and under-the-breath comments they might engender.
Cheers,
February 4, 2010, 11:11 amDilan Esper says:
1. He’s right about the SOTU.
2. There are good reasons to strike down restrictions on corporate speech, but the fact that some turn of the century legislator was a racist is not one of them.
3. Thomas needs to learn some humility about precedents. The ultimate precedent may be the constitution, but that’s not the same thing as justice thomas’ interpretation of the constitution. Lots of brilliant people preceded thomas on the court, they put in a lot of work interpreting the constitution, and a lot of folks have relied on those interpretations. thomas needs to learn (and never will learn) that just because the brilliant clarence thomas believes something is in the constitution doesn’t mean that it necessarily should be interpreted that way.
February 4, 2010, 11:14 amSteve Lubet says:
PatHMV: I am quite familiar with Pitchfork Ben’s shameful career as a segregationist and racist, and I read both of the linked articles. I don’t see any actual support for the theory that the Tillman Act was part of a design to prevent corporations from supporting integration. I would hope that Justice Thomas, originalist that he is, would be a better historian.
February 4, 2010, 11:15 amzuch says:
Really. If you (and Thomas) say so….
His opinion of his fellow justices is noted as well. But why any such purported grandstanding would prevent him from engaging in “legitimate” questioning is logic that escapes me. But then again, that’s true of much of his ‘logic’.
To be fair, though, his ‘logic’ escapes him as well, such as when, the year after Dale, when asked what the rationale was for the decision by a school student, he said he couldn’t remember the rationale of arguably the biggest case on the docket from the previous year.
Cheers,
February 4, 2010, 11:16 amArkady says:
Doing the right thing for all the wrong reasons is not unprecedented.
February 4, 2010, 11:16 amBored Lawyer says:
Neither is doing the wrong thing with a facade of doing the right thing.
February 4, 2010, 11:21 amJay says:
Steve Lubet–Either you or Justice Thomas may be correct, but the fact that he failed to give citations to your satisfaction in a speech does not establish that you’re right, or that he’s a bad “historian.”
February 4, 2010, 11:23 amSteve Lubet says:
Jay: I agree, of course, that Thomas needn’t provide citations in a speech — that is why my original post was in the form of a question. PatHMV provided a couple of links, but neither really supported Thomas’s assertion.
So the question remains: Is there any real support for Thomas’s statement that the Tillman Act was meant to prevent corporations from supporting integration?
The claim is dubious, and the burden is on those who advance it. Note that it is not mentioned in Kennedy’s majority opinion or in the Roberts or Thomas concurrences.
February 4, 2010, 11:41 amMark Field says:
As noted, Tillman certainly was a racist, as vile as American politics ever produced. But Thomas’s claim makes no sense. If Tillman was concerned that Republican corporations were “favorable to blacks”, why on earth would Teddy Roosevelt — a very partisan Republican — agree to the bill? Why does Thomas believe that corporations of that day were “favorable to blacks” or that the Republicans in Congress wanted to prevent “their” corporations from being so? There’s no reason to focus on the motivations of a single legislator; I mean c’mon — this wasn’t John Bingham.
In short, if this is an example of the historical reasoning of an originalist, it’s embarrassing.
February 4, 2010, 11:44 amBored Lawyer says:
I think you are missing the forest for the trees. A few days ago, the WSJ interviewed Floyd Abrams about the Citizens United decision. One paragraph, IMO, hit the nail on the head:
The underlying theory of the 1st Amendment is that we do not trust the government to regulate the free flow of ideas — to determine what is “good” and “bad” speech. It’s not that every type of speech is valuable in its own right — most would agree that child pornography (or as I said in another thread, Nazis marching in Skokie or Klansmen marching in Selma) are negative. It’s that it is not the role of the government to decide which idea is permitted and which isn’t. If that power is granted to the government, it can easily be abused and then we can slip into tyranny.
Thomas’s point is that what on the surface seems like a noble justification for suppression of speech (keep wealthy corporations out of politics) can easily mask a more nefarious agenda. That is precisely why the 1st Amendment bars the government from deciding who can and cannot participate in the free flow of ideas.
February 4, 2010, 11:50 amChris Travers says:
I don’t like Thomas’s jurisprudence on the whole. I think he is quite right at times and quite wrong at times, and in particular he tends to be (usually) overly deferential to elected branches. Indeed my concern about Sotomayor is that she, like Thomas, may turn out to be (generally) overly supportive of executive and legislative overreach.
This being said, I have to defend Thomas here regarding oral argument. I don’t think he has the only legitimate approach but I think he does have a legitimate approach, namely to spend his time working through the issues reading the briefs and paying a lot less attention to the oral argument. This makes sense the briefs are generally carefully prepared and represent a tangible and fixed point to work from. Oral arguments, not so much.
I also think when you read a bunch of oral argument transcripts, that many of the judges come across in oral hearings as arguing with eachother, not necessarily arguing with the lawyers. For example, see Scalia adding to the oral argument in US v. Stevens and, rather than asking just questions, adding the answers he wanted to hear when he didn’t get them. Evidently the purpose for asking the question wasn’t to see what the lawyer thought but to convince his colleagues of what he thought.
February 4, 2010, 11:55 amRailroad Gin says:
There are several possibilities. Just off the top of my head:
1) Tillman’s belief was erroneous. That doesn’t change that Tillman’s motive was racist.
2) Teddy was pulling a “maverick” move and bucking his own party in the name of reform. The GOP as a whole may have been against the bill, but a minority in the party supported it, including Teddy.
3) A coalition of racists and “clean government” types supported the bill, albeit for different reasons.
I honestly don’t know. I had never heard this argument about the ban on corporate financing before today. But anyone who understands the log-rolling, factions within parties, motives of individual politicians and so forth should understand that its not a simple as “if the GOP was against it, why did Teddy sign it?” Justice Thomas’s remarks are certainly plausible, but I would need to know more about the specific history.
February 4, 2010, 11:58 amStrict says:
Justice Thomas’ remarks seem reasonable to me.
It’s interesting to hear him refer to the Constitution as “precedent,” though. It’s not a bizarre idea, but I don’t know if I’ve ever heard anyone else call it that.
February 4, 2010, 11:58 amBored Lawyer says:
I don’t have enough history for that one, but the legislative history of McCain-Feingold indicates that it was meant to stifle criticisms of incumbents. Kind of a Congressional help-yourself law.
February 4, 2010, 11:59 amMartinned says:
Cite?
February 4, 2010, 12:06 pmDavid M. Nieporent says:
Thomas got it from the Center for Competitive Politics’ amicus brief, which cites the book Ben Tillman and the Reconstruction of White Supremacy, by Stephan Kantrowicz, as its source.
My use of Amazon’s “search inside the book” on that book hasn’t led me to any further details about the claim.
February 4, 2010, 12:07 pmMAM says:
Did Thomas cite Tillman’s alleged views in his opinion? Should he had?
February 4, 2010, 12:09 pmJay says:
Steve–Ok, but the trouble is, I don’t think anyone you’re speaking to is a self-identified “proponent” of the idea. Justice Thomas is, but as far as we know, he doesn’t hang out in the Volokh comment section. It’s a bit of a debater’s trick to take up an argument with a bunch of people who have never heard of it before, demand they back it up, then lament how unsupported it is when no one can.
February 4, 2010, 12:13 pmShelbyC says:
Zuch, your knee’s jerking.
February 4, 2010, 12:13 pmJonathan H. Adler says:
Steve –
There was no reason to mention the history of the Tillman Act in the decision because that law as not at issue in the case.
As for the specific claim that Justice Thomas repeats, it is only that Senator Tillman’s decision to introduce the bill was motivated, at least in part, by his despicable racial views. As I understand the history, Senator Tillman disliked and distrusted northern industrialists who, by and large, supported the Republican Party and opposed Jim Crow laws (even if for no other reason than that it was expensive to maintain separate black and white facilities, entrances, etc.). He thought the political influence of these groups — northern “money power” — was negative, in part because of his views on race, and sought to do something about it.
No doubt others who supported the legislation, including President Theodore Roosevelt, supported it for other reasons, such as a general distrust of large corporations and corporate power. I didn’t read Justice Thomas to suggest otherwise. Nor is he suggesting that those who support such restrictions today are closet racists or enablers of racial oppression. Rather, I think his point is that regulation of corporate political activity is not always “some sort of beatific action” because some times — as in the case of Jim Crow — corporations might be on the right side, and disarming them may empower evil folks like Ben Tillman.
Incidentally, as my co-blogger David Bernstein has written extensively, there is ample evidence that much Progressive Era economic legislation was motivated, at least in part, by a desire to suppress blacks by depriving them of economic liberty, so it should not be all that surprising to find something similar with regard to the Tillman Act.
JHA
February 4, 2010, 12:14 pmGuest Again says:
Thomas gave a reasonably good explanation of his non participation in oral argument in his C-Span interview and was a bit more charitable to his fellow justices: “Some people learn differently, and oral argument, or questions by them at oral argument, can be helpful to them.” He also said that sometimes oral argument does change his mind on a nuance in the case; but hardly ever on the basic issues.
February 4, 2010, 12:16 pmPLR says:
A justice of the Supreme Court does not care to engage counsel for petitioners and respondents in dialogue, even though they wish to have a dialogue with the justice.
How very imperial, and what a fine role model for future appellate judges.
February 4, 2010, 12:23 pmzuch says:
Would dueling Democratic and Republican press releases have had as much (or the same) effect as did Obama’s address to the Republican luncheon last week?
Cheers,
February 4, 2010, 12:26 pmDangerMouse says:
Zuch, your knee’s jerking.
LOL. Thread winner.
February 4, 2010, 12:27 pmzuch says:
Which serves a purpose as well, nicht wahr?
That, of course, doesn’t prevent Thomas from engaging in questioning the “right” way. Perhaps he could “lead by example”, rather than just criticising his colleagues.
Cheers,
February 4, 2010, 12:29 pmJonathan H. Adler says:
widmerpool & zuch –
Can I assume you were equally troubled by Justice Brennan’s failure to ask many questions at oral arguments?
JHA
February 4, 2010, 12:33 pmzuch says:
Right up there with Goldberg’s “Liberal Fascism”, eh?
Cheers,
February 4, 2010, 12:34 pmRandy says:
Couple of problems:
First, the Constitution isn’t ‘precedent’; it’s the supreme law of the land. Any first year law student can tell you that.
Second, who cares what Tillman thought? I thought that whole point of textualists was that legislative history is irrelevent — you are supposed to look at the language of the law and only that for interpreting it. If so, then what any person thought about the law at any point in it’s history is beside the point. The question is whether the law itself violates any provision of the Constitution.
Third, even if you accept that Tillman’s thoughts are relevant, how are they relevant today? Does the question of constitutionality turn on whether corporations favor or disfavor any particular group too much? If not, then this whole rationale from Thomas is bogus. If it does, then it should have been explained in the opinion.
Fourth, it’s his JOB to show up for the State of the Union address. Millions of Americans tune in to see what the president has to say. It’s the prez’s constitutional duty. One would think that a SCOTUS justice would show support for the proper functioning of our government, despite any personal inconvenience with it.
If he has a problem with catcalls and such, then perhaps he should write a note to those people chastising them for their incivility towards the president. ( I hear Thomas is big on incivility). Like it or not, SCOTUS is and always has been a political organization, no less political than any other appointed office. For him to complain that the court has become part of the dialog is bizarre. If it bothers him that much, he is free to step down and let some else take the heat.
February 4, 2010, 12:35 pmzuch says:
No. You can assume, if you read what I wrote, that Thomas’s explanation of his reticence makes no sense. But I’m glad we’re having this conversation. ;-)
Cheers,
February 4, 2010, 12:36 pmChris Travers says:
I’m not sure the address had much impact, and so the answer might well be yes. Of course, when trying to think through the issues, I find both equally worthless.
February 4, 2010, 12:37 pmChris Travers says:
Really? Where is it in the job description?
February 4, 2010, 12:39 pmMartinned says:
That is absolutely not true. SOTU is about “dialogue” between the elected branches. Supreme Court justices, like those generals who were there, can be there as part of the audience, but have no particular moral or legal obligation to be there.
February 4, 2010, 12:39 pmMartinned says:
Either way, the question is “impact on what”. Politicians’ attempts to influence voters are hardly a good basis for evaluating the relative value of briefs and oral arguments when it comes to convincing Supreme Court justices. Personally – imagining for a moment that I am a Supreme – I’d have to ask questions. Otherwise, I’m sure I’d never be able to concentrate enough to do the speaker justice. That said, I’d probably prefer the briefs over the oral argument anyway.
February 4, 2010, 12:42 pmK Dackson says:
Why would you assume that? Brennan is liberal, so the rules zuch and widmerpool lay down do not apply equally.
Also, you really expect an answer?
February 4, 2010, 12:42 pmStrict says:
“First, the Constitution isn’t ‘precedent’; it’s the supreme law of the land.”
But how does its supremacy necessarily make it not precedent? Maybe it’s just the supreme precedent (or the “ultimate precedent” as Thomas calls it).
Precedent almost always refers to case law, which the Constitution is not. That could be the semantic argument against calling it a precedent. But maybe “precedent” can have the broader meaning used by Thomas, I don’t know.
February 4, 2010, 12:48 pmStrict says:
Randy: “SCOTUS is and always has been a political organization, no less political than any other appointed office.”
It’s clear the SCOTUS is political, but I don’t think it’s equally as political as a Cabinet-level post.
February 4, 2010, 12:51 pmBored Lawyer says:
In response to Martinned above who asked for a cite:
February 4, 2010, 1:05 pmBored Lawyer says:
Finally, one should add this paragraph from Scalia in McConnell, which makes the same point I made above, only better:
February 4, 2010, 1:07 pmJonathan H. Adler says:
Randy –
Justice Thomas never said Tillman’s motivations were relevant to the constitutionality of the Act — indeed, the constitutionality of the Act was not even at issue. Based upon the news report, he merely pointed out Tillman’s alleged motivations as evidence that regulating corporate speech is not always “some sort of beatific action.”
zuch –
It’s nice to see you’re so ready to dismiss academic publications because you don’t like their conclusions. You should actually read Bernstein’s book or consider the evidence before you dismiss it.
JHA
February 4, 2010, 1:16 pmMartinned says:
@Bored Lawyer: I’m sure they were concerned about attack ads. That’s not the part that needs a cite. But then, why does a ban on attack ads disproportionally favour the incumbent, as you claimed. In fact, one could claim the opposite: in most races, the incumbent will have a bigger war chest than his challenger. More money = more money to spend on attack ads. Not to mention that a challenger is more likely to have a previously undiscovered skeleton in his closet. Point being: why does any of this translate to an intention to favour the incumbent?
February 4, 2010, 1:22 pmCharles says:
I don’t think Thomas is making the argument that the racist bit was why he ruled the way he did.
I think he was only trying to argue that the rules limiting corporate involvement in politics, were not “some sort of beatific action.”. but with the “as I heard” he sufficiently dulls the force of his one supporting claim, thus rendering his whole argument pointless, except that he got to imply that the law was racist.
This seems to be a bit like the “Redding would not have been .. Nor will she be the last” quote. I’m sure these are just rhetorical devices. But are there other examples of him using arguments which on their face don’t pass muster?
February 4, 2010, 1:26 pmKirk Parker says:
Strict,
Yeah, it’s interesting how easy it is for people to misunderstand figurative language when it suits them.
February 4, 2010, 1:34 pmBored Lawyer says:
The short answer is that that is not how things have played out in American politics.
Incumbents have a natural advantage. They can use their office to be seen doing apparently good things for their constituents. (In fact, the Government pays for them to send out communications to their constituents — which are mostly reminders of what a wonderful job Congressman X or Senator Y is doing.) Incumbents can call a press conference to discuss their latest “accomplishment.” In most races, incumbents try to play up all they have supposedly done in the past and ignore their opponent.
OTOH, if you are looking to unseat an incumbent, then almost by definition you are saying something negative — the Congressman or Senator has not done as good a job as he leads you to think.
Google “McCain Feingold incumbent” and you will find quite a few analyses as to how that law favored incumbents.
(And why are “attack ads” necessarily bad? If I am voting in an election, I want to know all the bad things the incumbent has done, as well as all the good things. Frankly, I am deeply skeptical about a law that seeks to inhibit only “negative” speech.)
February 4, 2010, 1:38 pmMartinned says:
@Bored Lawyer: Fair enough.
Just for the record, I never said any such thing. I only said that I could see why politicians would be concerned about them. I would be too if I were a politician.
February 4, 2010, 1:53 pmBored Lawyer says:
My comment wasn’t a personal attack on you, I was just observing. Your response makes my point — politicians should have to be “concerned” about them. You want to be rehired for to represent me, then you should be able to defend yourself against attacks on your record.
This has always been part of American politics. Attacks against other politicians have often been vicious. That is part of the game.
Just from a quick search, I found that Abraham Lincoln (who today is considered one of our best Presdients) was frequently compared to a monkey, an ape, and an “ape baboon.” Harper’s also described him as “despot, liar, thief, braggart, buffoon, usurper, monster, ignoramus.”
February 4, 2010, 1:59 pmzuch says:
Does this comment further the discussion here?
But FWIW, your scepticism is unwarranted.
Cheers,
February 4, 2010, 2:14 pmDavid M. Nieporent says:
You seem to be arguing with something nobody ever said, seemingly under the mistaken belief that Thomas’s speech and his opinion in Citizens United are coterminous.
You’re very very confused. It is not a judge’s “JOB” to show up for the state of the union address. The constitution says that the president shall report to Congress on the SOTU from time to time. It does not say that he will give a speech to Congress about the SOTU, and it does not say that his report, however delivered, shall be directed to anybody other than Congress. It’s no more Thomas’s JOB than it is a schoolteacher’s job, or a professional baseball player’s job, or a plastic surgeon’s job.
February 4, 2010, 2:17 pmMartinned says:
Yes, I can see why you would want your elected representatives to be able to defend themselves against such attacks.
February 4, 2010, 2:20 pmBored Lawyer says:
No, what I want is that my elected representatives not use the power of the government to ban (indeed criminalize!) such attaks.
As I said above, not all protected speech is good speech. Much of it is crude, unfair, bigoted and socially negative. But the alternative is granting the government the power to ban “bad” speech and only permit “good” speech. That power, history has shown, is easily abused.
Lincoln managed to get re-elected despite being called an ape and is now considered one of our greatest presidents.
February 4, 2010, 2:25 pmDavid M. Nieporent says:
Most challengers don’t lose because of “skeletons” or “negative ads”; they lose because of obscurity. Taking money out of the campaign, even if an equal amount on both sides, hurts the challenger far more, because it decreases his visibility.
(Just to be clear, McCain-Feingold was not a ban on “attack ads.” It was a ban on ads that mentioned candidates near an election.)
February 4, 2010, 2:26 pmDavid M. Nieporent says:
Cite?
February 4, 2010, 2:28 pmWidmerpool says:
Oh my goodness, apparently I’m being forcibly lumped together with zuch–if I can’t free myself I’ll wind up as . . . zuch-ini.
I actually support Justice Thomas’s stance on oral argument and was just being mildly provocative with my query. And the Brennan reference is spot on–historically, no one, until he had significant seniority (except for the Chief), would ask blizzards of questions at oral argument until Justice Scalia came along.
February 4, 2010, 2:32 pmzuch says:
Did I dismiss it? I don’t think so. I just thought that it sounded a bit like Goldberg’s polemic:
It sounded a little like picking low-hanging cherries and mashing them up to me. But I suppose I could give him the benefit of the doubt; I may be wrong.
And FWIW, “academic publications” in my previous life were a bit different … that is to say, peer-reviewed. Not just books published by academics.
* * *
I will if I don’t have to pay for it (or if there’s a Kindle sample available). Maybe time for a trip to the library.
But Bernstein is not high on my list for forthright disputants. His lack of response here is notable (albeit he may just have decided to let it slide, rather than issue a correction).
Cheers,
February 4, 2010, 2:52 pmzuch says:
I think I was on the road, watching C-SPAN, when I saw that. My jaw dropped … actually, it didn’t; I suspect that Thomas didn’t want to defend the rationale to a bunch of high school students…..
Sorry I don’t have better … but I did see it.
Cheers,
February 4, 2010, 2:55 pmKenvee says:
A pretty common model, actually. It’s not a judge’s job to engage in a dialogue. It’s their job to consider the cases before them and reach a reasoned legal decision. Oral argument can be helpful in doing so. But it’s not helpful to all judges or in all cases. That’s why many appellate cases all over the country are decided without oral argument ever even being granted, even if both parties request it. The majority of my appeals never go to oral argument. They’re decided on the briefs, which is fine and proper.
The job of the parties is to do whatever they can to help the judge reach the correct decision, not to make themselves look better by claiming they’re holding a “dialogue” with the judges. There is no more boring and pointless argument to sit through than one where the parties don’t actually have anything to add but insist on getting up there and repeating their briefs anyway.
February 4, 2010, 2:56 pmDavid V. says:
I don’t normally stick my neck out on legal stuff because my limited understanding comes from helping people prep for the bar.
@David- “Taking money out of the campaign, even if an equal amount on both sides, hurts the challenger far more, because it decreases his visibility.”
This does not compute for me. I don’t find ‘far more’ evidenced in places that have publicly funded elections. And I think that the real travesty in the Citizens decision is that we are not talking specifically about free speech, as a corporation is not a person -it cannot be punished as one for, say, libel or slander. Would the Citizens ruling allow for that loophole to be closed?
Also, regarding ‘free speech’- or this apparent granting of First Amendment rights to a corporate structure- while it is my right to purchase air time on ABC to tell viewers that candidate A is better than B, it is now apparently OK for ABC to make their own commercials declaring B better than A while refusing to air my commercial -at all- on any of their parent company’s media holdings.
Isn’t this type of quandary (free speech is as free as you can afford) diametrically opposed to what equal under the law is supposed to mean?
February 4, 2010, 3:02 pmmariner says:
Randy:
It’s the President’s constitutional duty to report to the Congress – not the Supreme Court – on the State of the Union. The Constitution doesn’t require that the report be made in person.
Millions of Americans tune in, but other millions of Americans don’t. None is shirking a constitutional duty.
February 4, 2010, 3:03 pmalligator says:
Thank you for your articulate, succinct, and generally terrific expression of what I thought (in a much less articulate and succinct manner) when I read Randy’s comment.
February 4, 2010, 3:14 pmDavid M. Nieporent says:
There is no such “loophole.” A corporation can be punished just as a person can be for libel or slander.
February 4, 2010, 3:45 pmDavid V. says:
Ahh- yes, my fault- it’s just the burden of proof if ‘far more’ difficult.
February 4, 2010, 3:52 pmPerseus says:
I assumed that this was just another way for Justice Thomas to mock stare decisis and say that the only thing that really matters is the Constitution, which isn’t merely precedent. It’s not even “super-duper” precedent. It’s ultimate precedent!
Apparently you seem to think that the president is like the Queen of England who commands her lords (justice) to attend her Throne Speech.
February 4, 2010, 4:01 pmAnonsters says:
But but but but… oral arguments are dispositive!
February 4, 2010, 4:36 pmAnonsters says:
There’s also evidence that Hans v. Louisiana was motivated by racial bias, and yet it remains a sacred cow of state sovereign immunity (barf).
February 4, 2010, 4:41 pmJohn A. Fleming says:
Justice Thomas is a follower of the wisdom of one of our great philosophers, Yogi Berra:
.
February 4, 2010, 5:10 pmJoe says:
I rather cite the Berea College Case, decided about that time. The Supreme Court noted that there was more power to limit corporations than persons and upheld a barrier to a college that was incorporated from running a desegregated course of studies. Justice Harlan dissented. Denial of fundamental rights (see also Pierce v. Society of Sisters, also involving a corporation) could be illegitimate, even if a corporation was involved.
A bit more educational than suggesting a law is wrong because it was promoted by a racist unless everyone who supported it at the time was one too. Unclear that.
February 4, 2010, 5:27 pmDavid Bernstein says:
Someone doesn’t seem to be aware that university press books ARE peer-reviewed, often twice (the proposal and sample chapter is peer-reviewed, and then the entire manuscript when completed).
February 4, 2010, 5:53 pmRandy says:
Chris: “Really? Where is it in the job description?”
Tradition. All the supremes have shown up for at least, what, the past 100 years or so? Not everything in your job description has to be written down. It isn’t written that the VP should attend state funerals, but that’s certainly one of his functions. It isn’t written anywhere that the Prez must give press conferences, but that’s part of the job anyway.
Martinned: ” Supreme Court justices, like those generals who were there, can be there as part of the audience, but have no particular moral or legal obligation to be there.”
Then why are they there in the first place? And why have they been there for as long as anyone can remember? I agree — there is no legal obligation to be there, of course. But it isn’t just a matter of, well, my tennis lesson is scheduled that evening, so I’ll have to pass.
Part of any high level government employee’s function is to respect the traditions and process of our democracy. There is no requirement that anyone wear a suit either. Surely, senators and supreme court justices are free to attend the speech wearing jeans and a t-shirt, aren’t they? But they don’t. And why not? Because they have a certain amount of respect for the office of the president, the venue it is held in, and for themselves.
You are all of course correct — his pay won’t be docked for not showing up. I guess I just have a different notion of what’s expected of our government leaders, and we’ll just have to leave it at that.
February 4, 2010, 5:56 pmRandy says:
Perseus: “Apparently you seem to think that the president is like the Queen of England who commands her lords (justice) to attend her Throne Speech.”
She has fabulous jewels. And the justice lords have much better costumes, what with their funny white wigs. So yes, of course, I would prefer that, provided the speech is followed by ‘afternoon tea’ for all.
February 4, 2010, 6:01 pmTCO says:
I think a lot of people are misconstruing the point of Thomas’s remark.
He was not saying that the Tilman law is bad, because the guy was a racist. (Thomas’s crede would be to rule on the law regardless.) He just wants those who automatically think of the Free Speech restrictions as good, to realize that even from a policy standpoint, they may not always go in the direction that an advocate wants.
February 4, 2010, 6:23 pmRhymes With Right says:
Sadly, this little detail from Clarence Thomas is getting overlooked by people — the “century of regulation of corporate speech” begins with a racist Democrat Senator trying to shut down political activity by Republican corporations that were supportive of the rights of southern blacks. I’ve highlighted it on my site:
http://rhymeswithright.mu.nu/archives/297841.php
February 4, 2010, 6:24 pmLaura(southernxyl) says:
Whoops, now you’ve done it.
February 4, 2010, 7:25 pmPerseus says:
I’m glad to see that you also respect the American tradition of the people mocking their political leaders by claiming that Justice Thomas didn’t know what any first year law student knows about the difference between precedent and the Constitution (making the assumption that you actually understood what Justice Thomas was saying and willfully distorted it so you could take a potshot at him).
As for the tradition of justices attending the SOTU, it only came about because of Wilson’s resuscitation–and demagogic modification–of previous practice (which, in turn, was based on the Throne Speech). And it’s not obvious to me that the public would much note or care if the justices all decided to stop attending the SOTU (though I’d prefer it if this vulgar spectacle were completely eliminated).
February 4, 2010, 7:25 pmDavid M. Nieporent says:
Well, no. Who on earth told you that? Usually 3 or 4 miss it every year, for as long as people have been paying attention; NO justices were at the 1986 or 2000 SOTUs.
(And it couldn’t be “at least” the past 100 years, because there wasn’t anything to “show up” to until 1913, or in most of the 1920s. (I doubt it’s a coincidence that the two worst presidents of the 20th century worked to establish the tradition of a SOTU address.))
February 4, 2010, 7:41 pmzuch says:
Is this true of all university press books? I don’t think so. But my apologies to you and Prof. Adler if your book was peer-reviewed.
And just to set the record straight, here’s what I said:
Subtle difference, but it’s there.
Cheers,
February 4, 2010, 7:50 pmFrank Drackman says:
Clarence Thomas is a friggin GREAT American and after the crap he went through to get confirmed…So he complained about a Pubic Hair on his Coke Can, How is that Her-Ass-Meant??? Is this Russia or Iran, of North Korea where complaining about a pubic hair on your Coke Can is a Capitol Offense?????
Its like Med School, students only ask questions to make themselves look smart, if you actually ask a real question cause you don’t know something everyone looks at you like you were jerkin off…
Some time in the future, when George W. Bush is recognized as one of the greatest Presidents in American History, there’ll be 2 additions to Mt Rushmore…
Frank Drackman
February 4, 2010, 7:57 pmMartinned says:
??? I’m pretty sure the Law Lords don’t attend the Queen’s speech. As for the rest of the Lords, they are all summoned, but if they all came I don’t think it would fit.
I haven’t been paying attention for very long, but my impression from recent threads on the topic was that the entire concept of justices attending is more something of the last few decades. For almost half the history of the US, states of the union as we know them today weren’t held at all, and when presidents started doing it again, I don’t think the justices attended.
… what he said.
February 4, 2010, 7:58 pm(I don’t think it would be a good idea to abolish the current practice. Instead, why not have a proper debate immediately following? If the president is on the Hill anyway, he might as well answer a few questions.)
Mark Field says:
This doesn’t make any more sense than Thomas’s comments. There’s no reason whatsoever to mention Ben Tillman unless Thomas believes that HIS motivations were shared by a majority of Congress and the President. In the absence of that evidence, Justice Thomas is engaging in law office history.
February 4, 2010, 8:24 pmChris Travers says:
Really? I thought back in 2000 none of them showed up. Am I missing something?
February 4, 2010, 8:48 pmChris Travers says:
You know, I agree that Thomas is a great American and we can all learn from him as a person. His speech on what it is to be an American (aired on CSPAN iirc) was quite thought provoking and inspiring. I have a great deal of admiration for the man.
I don’t generally like his jurisprudence though (a few cases notwithstanding).
February 4, 2010, 8:50 pmRandy says:
David: “sually 3 or 4 miss it every year, for as long as people have been paying attention; NO justices were at the 1986 or 2000 SOTUs.”
Okay, okay — I’m wrong! I really thought that all of them showed up as a matter of tradition. I always see the camera sweep of them sitting up front and center, but maybe I can’t always count to nine. To me, the speech is a coming together of all branches of gov’t to find out what the state of the union actually is, and what the prez hopes to accomplish in the next year. In times of war, or other crisis (such as we are now), one would think that we are supposed to work together to find solutions. Pretty naive, I know, but that’s just me.
Perseus: “making the assumption that you actually understood what Justice Thomas was saying and willfully distorted it so you could take a potshot at him).”
No, I was mocking him for not using the language that any attorney worth his salt would use. I’ve never heard the Constitution referred to as a precedent because there is a difference between precedent (which is how a case was decided in the past), and law. Thomas is simply wrong in his use of basic language in an area in which he is an expert. Which, of course, you know.
February 4, 2010, 10:24 pm1040 says:
So, from what I understand from JHA and others…
Thomas didn’t mention Tillman last week because it is a non-sequitur.
Thomas does mention Tillman this week because it is relevant.
That sure clears things up.
Also, and I ask this, because I don’t know the answer and haven’t been able to find it via quick Google searches: Has Clarence Thomas not shown up at SOTUs ever since he was appointed to SCOTUS? If not, since when did he stop attending? And how much does PTSD from his narrow escape from having to take the fall for his sexual harassment have to do with it?
February 4, 2010, 11:17 pmimpeccable logic says:
Your mockery is misplaced, since he was speaking figuratively when he spoke of the Constitution as the “ultimate precedent.” I know what he means. Most lawyers know what he means. Don’t be so mindlessly literal.
February 5, 2010, 12:14 amPerseus says:
Unless, of course, the language was being deliberately misused to make a point.
February 5, 2010, 12:19 amKJHG says:
He also defends cracky O over his birth because his daddy was a CIA informant. Secret, can’t talk.
February 5, 2010, 3:11 amFrank Drackman says:
At least Justice Thomas doesn’t wear that rediculous Robe with the LA Rams stripes on the sleeves like that wierdo Rehnquist did…
February 5, 2010, 8:57 amAnd I liked Rehnquist BTW, too bad they couldn’t just save his brain, in a Jar of Saline with electrodes…
Kenvee says:
It’s not a matter of counting 7 or 8 instead of 9. In many recent years, only Breyer has shown up. In 2000, as was pointed out, none of them did. There were six this year, which was actually a really good display of solidarity, if that’s what you were looking for. And look at how well it worked out for them. I bet we’ll be back to one at best next year.
February 5, 2010, 9:32 amJaimeInTexas (Jam) says:
SOUA’s used to be delivered to the Congress in written form. When was the last time that a SOUA was delivered that actually dealt with the STate of the Union? SOUA’s are nothing but political grandstanding and a long wish list.
Good for Justice Thomas for not attending.
February 5, 2010, 11:00 amJaimeInTexas (Jam) says:
And imprisoning thousands of people, many of whom were newspaper owners, and editors; including the exiling of a sitting Congressman.
Sic Semper Tyrannis
February 5, 2010, 11:04 amJaimeInTexas (Jam) says:
To laugh or to cry?
February 5, 2010, 11:08 amChris Travers says:
I for one welcome our immportal, Lovecraftian overlords!
February 5, 2010, 6:39 pmJohn David Galt says:
I’ll bet there are a lot more officials who would like to skip these functions but feel compelled to attend because if they didn’t, they’d be called racists. Justice Thomas’s skin gives him immunity at least from that unfounded accusation.
February 6, 2010, 2:32 pmRyan says:
I can’t remember which timestamp the comment was. . but sheez, you hold state sovereignty in such contempt that you practically sneer when you say it? YOu are THAT much of a central government statist that the very idea of something not being centralized makes you break out in hives?
February 7, 2010, 8:21 ammarkm says:
SC justices attending the SOTUA seems rather like receiving ex parte communications.
February 7, 2010, 10:37 ammarkm says:
It always was ABC’s privilege to propagandize for one candidate and attack another – and to do so in the “news” rather as an advertisement. OTOH, if accepting a paid ad would increase corporate revenue even a little, now that it is clearly legal to run it, refusing it would be grounds for a shareholders lawsuit. (If any conservative or Republican can hold his nose long enough to buy a single share of stock!)
February 7, 2010, 11:03 ammarkm says:
Martinned, the biggest skeleton in most politicians’ closets are all the deals they made to get their constituents a few favors. These are generally on the public record, but not often remarked by the news media. (Look at the furore over Kelo – which mainly reaffirmed 30 years of precedents – for how ignorant Americans often are about the actual workings of their government.) So the incumbent Congressman trumpets the $100 he got for his average constituent (among other things, by sending out postage-free letters), and doesn’t mention the $200 the deals with other Congressmen cost the average constituent. Or the votes that were in direct contradiction to his platform now – and probably back then, too.
Unless his opponent is a political virgin, she probably has some similar skeletons, but they’re likely to be fewer and less serious for someone trying to move up than for someone already up there. So attack ads would gain her something, but she may be reluctant to run them herself and look mean and quarrelsome. OTOH, third-party attack ads would quite likely benefit her.
Of course, this is all just theory until someone does a statistical study looking for a correlation between campaign finance laws and how often incumbents lose an election. My impression is that throughout my lifetime, as campaign finance laws have become stricter, incumbents have done better, but I don’t have the time to collect the data to back that up. (And correlation != causation, but it would certainly be suggestive if the correlation backs up the theory.)
Note that this argument depends on a peculiar feature of American politics: individual politicians are more important than parties. Voters judge them by their own records, platforms, and campaign appearances far more than by their party’s record and platform. It is rare for the party’s help with the campaign to weigh anywhere near as heavily as the candidate’s own fundraising. Many Democrat’s in Congress now would have lost if they’d tried to sell the national party’s position in their own districts – and on the other side, “RINO” (Republican In Name Only) has been a common epithet for over a decade.
February 7, 2010, 11:27 amJeff Walden says:
It is entirely reasonable to mention Ben Tillman if there’s a possibility that without his actions to draft, promote, and advance the bill, the bill would not have passed. Would someone else have felt sufficiently strongly to work on a comparable bill in his absence, or if perhaps Tillman’s motivations had not included a racial component? Maybe, maybe not; we can’t be certain one way or another, and for that reason at a minimum it seems entirely proper to mention Tillman’s motivations for supporting, indeed prioritizing, the Tillman Act.
February 8, 2010, 1:24 am