Clarence Thomas Defends Recent Ruling on Campaign Finance

Associate Justice Clarence Thomas appeared to take on President Obama this week in discussing the ruling in Citizens United — contradicting the President’s portrayal in the State of the Union. In my view, the President did overstate the holding (not unheard of in the halls of Congress), but I continue to despair over the increasing public role played by justices (here). In my view, Thomas should not be engaging in such a public debate and should allow these decisions to speak for themselves.

In an earlier entry, I stated that I believed that Associate Justice Samuel Alito should apologize for his shaking his head and mouthing “not true” in response to the President’s statements. It was not just injudicious but a direct violation of a tradition of strict neutrality for justices attending such events.

Now, Thomas appears eager to join the fray. He took a shot at commentators with the observation that “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company.” A fair point, but I find it fascinating that justices now believe that they can write opinions and then hop on a speaking circuit to defend them like some politician. Given the growing view of the Court as driven by politics since the Bush v. Gore decision, this type of campaigning in support of a decision only serves to undermine the Court’s credibility further.

While Thomas did not directly discuss the President’s words, he made it clear that he disagreed with such criticism.

I have previously objected to such appearances by Justice Scalia and have strongly supported a return to the traditional view of justices, who largely avoided public speaking engagements beyond ceremonial remarks at graduations.

For the full story, click here.

29 thoughts on “Clarence Thomas Defends Recent Ruling on Campaign Finance”

  1. Since this is the most recent thread for Citizens United, I am using it to share a new article by my friend Lou Fisher on the decision and the roles of the Court and Congress. Here are excerpts and the link:

    Saying what the law is
    Louis Fisher
    February 22, 2010

    Writing for the U.S. Supreme Court in Citizens United v. FEC, Justice Anthony Kennedy claimed that judicial rulings on campaign finance law are final unless the Court changes its mind or the Constitution is amended. Although he acknowledged that the Court “must give weight to attempts by Congress to seek to dispel either the appearance or the reality” of improper influences from independent expenditures, he added: “The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule.”

    Decide, yes; final, no.

    In his first inaugural address, Abraham Lincoln said that Supreme Court rulings are binding on the parties. Yet if the policy of the government “upon vital questions affecting the whole people” are to be “irrevocably fixed” by the Court, “the people will have ceased to be their own rulers.” For more than two centuries, Congress has often used the legislative process to reverse and alter decisions by the Court. Examples of this constitutional dialogue include the areas of federalism, the commerce power, slavery, child labor regulation, religious liberty, free press, privacy, women’s rights and separation-of-power disputes. At times Kennedy seems to understand this larger canvass, as when he quotes from a 1957 Court decision: “Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen.”

    There are no grounds for Congress to defer to the Court as the “last word” on constitutional meaning. In the area of campaign finance, the legislative branch has equal, if not superior, competence, authority and legitimacy. Instead of trying to analyze case law, Congress should start from scratch and produce a coherent, principled, evidence-based and intelligible law on campaign finance. For more than 30 years, the Court has shown it is incapable of doing that. In the 1978 Bellotti case, Justice Byron White accurately observed that, with regard to campaign finance, “the expertise of legislators is at its peak and that of judges at its very lowest.”

    Careful and persuasive analysis by lawmakers can send this message to the Court: “With all respect, you got it wrong. We are passing new legislation to regulate money in political campaigns. The level of spending is corrupting our political system, draining power from the people and weakening Congress as an independent branch.”
    Louis Fisher is specialist in constitutional law at the Law Library of Congress. The views expressed here are personal.


    Copyright 2009. Incisive Media US Properties, LLC. All rights reserved. National Law Journal Online

  2. Carolyn Kennedy:

    Duh she spells it Caroline.

    I would choose another name to poke fun with. that poor woman has suffered enough and doesn’t need to be mocked in this manner.

  3. Well, that may be the best that we are able to count as Obama’s legacy.

  4. Thomas has never been a judge, even after he joined the Supremes. He is nothing but a bought and paid political operative. How many questions has he asked during all the oral arguments he has heard as a Supreme? He doesn’t need to ask questions in open court, because he just has to ask Robers and Scalia which way they want him to vote and he is done.

  5. you apparently wont have long to wait for a fix supposedly Kerry and Spector are proposing a constitutional amendment to modify the first amendment to limit this.

    I think Costa Rica might be nice, and Spanish isn’t a bad language to learn.

  6. These guys are not mental giants and can’t be expected to understand. However, there have been times when an intellectually lack luster justice “grew” into the position and became someone whose legal opinion was valued by his contemporaries and by history. These boys aren’t of that caliber.

    Lecturing them on proper judicial behavior is like telling a garbage man to stop denting garbage cans ….

    (My apologies to sanitation engineers everywhere.)

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