Posted on 04/04/2014 4:07:44 AM PDT by markomalley
Justice Clarence Thomas’s influence was on full display in the Supreme Court’s landmark decision to strike down a key campaign finance restriction.
And it’s just one in a string of cases in which Thomas could be dragging the court toward his way of thinking.
Chief Justice John Roberts penned Wednesday’s plurality decision, which eliminates the limit on the total dollar amount an individual may give to political candidates and committees.
But Thomas, seen by many as the court’s most conservative justice, wrote a concurring opinion that both represented the decisive vote in the 5-4 decision, and beckoned the justices to go further.
Thomas used his opinion to argue in favor of scrapping individual contribution caps altogether by reversing the court’s post-Watergate decision known as Buckley v. Valeo, which held that limits are justified as a measure to stave of corruption.
“This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment,” Thomas wrote. “Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design.”
Thomas is the only Justice calling for the total elimination of individual contribution caps so far, but Wednesday’s ruling in McCutcheon vs. the FEC could give him hope that the court’s majority will eventually reach his conclusion.
It’s familiar terrain for Thomas, who experts said has often staked positions outside of the mainstream, even of the court’s conservative wing, during more than two decades on the bench.
“He is not one for half-measures,” said Tom Goldstein, an appellate advocate who has argued dozens of cases before the Supreme Court. “He, on more questions than most justices, he is willing to stake out the strongest position.”
For Thomas, that has often meant standing alone. But there have been cases – on Second Amendment and criminal justice issues, for instance – where Thomas started out alone in dissent, only to watch the court “cohere around that once lonely position,” Yale law professor Akhil Reed Amar said.
Thomas famously remains silent during oral arguments before the court, as other justices spar and pepper the attorneys before them with questions. Amar, who described himself as a liberal admirer of Thomas, scoffed at suggestions that he takes his cues from the court’s other conservatives or cedes any of the power that comes with his robe.
"You could make a case that he’s been the most influential,” he said. “The game isn’t talking at oral arguments.”
Amar likened Thomas to former justices John Marshall Harlan, the only dissenter in the landmark 1896 Plessy v. Ferguson decision backing racial segregation, and William Rehnquist, who was dubbed as “the lone ranger” before the court gradually coalesced around him.
Whether that happens for Thomas will depend in part on the future makeup of the court, as well as the evolution of the law. In that sense, Thomas is taking an “intergenerational” approach to the court’s business, Goldstein said.
“This is the long view, and the long game for what the law is going to be like in 50 or 100 years," he said.
In the meantime, Thomas is subtly pulling the court in his direction simply by virtue of the positions he takes, Goldstein said. In McCutcheon, for example, Thomas’ push to overrule the Buckley ruling altogether likely made the court more inclined to weaken it, he said.
In other words, the justices need not adopt Thomas’ ideology to be influenced by it.
Goldstein, who publishes the SCOTUS blog providing Supreme Court analysis, said he believed that the court as currently constructed would be unlikely to toss aside contribution limits entirely. But he and other observers of the court said the Roberts court could further loosen restrictions incrementally, perhaps raising the threshold for individual contributions to a candidates.
Still, Thomas’ call to end all contribution limits entirely is not without backing. For instance, a Wall Street Journal editorial in response to the McCutcheon ruling embraced Thomas position.
“But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress,” the Journal said. “Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case.”
Thomas or Scalia should be Chief Justice.
You took the words out of my keyboard.
The way to fix campaign fiance is to be completely transparent...
Any donation for any amount must be reported to the FEC within 24 hours with all the pertinent information except any personal information...
Any campaign that fails to report any transaction is fined 100x the amount....
With that system anybody can see who is giving to whom....
If this line were written by a conservative writer about a black liberal justice, the screams of racism would be headlined in every major paper, and on every msm TV station.
BLACK MAN DRAGS...
Thomas’ written opinions are also the tightest and most solid. No sophistry or flowery prose for Clarance, just straight up legal analysis. Issue, law, application and conclusion.
Pray for Justice Thomas.
until Roberts was blackmailed for his illegally Irish adopted kids or some early bone smuggling, he seemed like a good conservative bet.
funny how things change when vetting isn’t properly done.
From Scalia’s words, he is often influenced by Thomas’ arguments and positions.
You can't even express disagreement with Obama's policies without someone suggesting ulterior motives.
Yes. Even where there is disagreement on what the ruling should be, you at least know where the line is...what actions you might take that would comply with the ruling, and which would not.
Sandra Day O’Connor was legendary for the unnecessary vagueness, blurry lines, and double talk in her rulings. Some of the current judges follow suit.
Respectfully disagree. The information you provide the FEC is reported to the IRS. It will then be used to persecute patriots by denying them health care and harassing them using tax law. Further the first amendment doesn’t require it. No reporting is my position. Period. Resist the beast.
It can still be hidden in times of transparency. Take the Obama campaigns.
A billionaire communist sympathizer can purchase $250K in “Visa” gift cards anywhere in the world; all in $25 of funds.
Those cards can then be distributed through an Operations Network to individual American citizens on the street. They are told, “You can spend $10 but $15 must be sent to the Obama Campaign.” At the same time, the Obama Campaign (acting on a suggestion from the Operative Network) makes a policy that doesn’t record personal info for VISA/MC/AmEx card-based donations of $20 or less.
Voila! Soros contributes $150K to Obama.
Obama is the one who is not very bright. He is usually lost without his teleprompter. He got through the Presidential debates because both McCain and Romney were easy on him and Romney also had Candy Crowley, the moderator, sticking her nose into the debate.
Thomas was the best pick for the court ever.
There is something special about black conservatives. They are more dependable than any other. I can only assume the need to constantly defend why they are conservative hones their beliefs, while the constant attacks from the left and in particular other blacks drives then further right and solidifies their positions.
Yes but the law was never obeyed anyway. If an illegal contribution was made, it was kept during the critical cash flow need and then in an apology returned. There was no penalty for holding the money during the time of critical cash flow need.
The broken law that needs to be remedied with the death penalty for the offenders has to do with using the government as club to render senseless those attempting to follow the law. The offenses are a grave assault on the republic
...if only....
What would be truly interesting is a study of cases where Scalia and Thomas did NOT agree...there can’t be many of those, but it would be a challenge for conservatives to see the differing reasons for those instances.
I didn’t care for George HW Bush, but this was his was one of his best decisions-—like picking Dan Quayle to be VP
No reporting is a bad idea. The obama campaign in 2008 reportedly had massive amounts of small donations coming via the internet using prepaid credit cards as well as standard cards. But the campaign disabled security systems on their credit card authorizations which matched names with addresses. So the campaign was able to accept contributions from overseas from donors who may or may not have been Americans. If anonymous campaign cash flows, leftist campaigns will be awash in money from our enemies abroad.
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