Alongside Sen. Rand Paul, Supreme Court Justice Clarence Thomas has become one of the most high-profile critics of “civil forfeiture.” Under this appalling practice, police can confiscate property, even from those who haven’t been charged with a crime. In a concurrence released last month, Justice Thomas surprised many when he slammed the practice as “egregious” and questioned if it’s even constitutional. Although his concurrence was brief—just six pages—Justice Thomas identified many of the glaring defects in civil forfeiture. [Read More]
What if the left threw a high-tech lynching and no one came? It happened this spring, although you probably didn’t notice. On April 16, HBO aired Confirmation, a docudrama version of Justice Clarence Thomas's 1991 Senate confirmation hearings—more specifically, of Anita Hill's sexual harassment accusations against her former boss and mentor. It flopped.
At first glance, Confirmation seemed a strange choice to receive the full HBO treatment. The film attempted to turn a 1994 book, Jane Mayer and Jill Abramson's Strange Justice, into a major 2016 television event. As the book's title suggests, Mayer and Abramson set out to construct a compelling anti-Thomas case out of themes that had failed to convince the Senate and the American public in 1991. Even the New York Times's book reviewer, Christopher Lehmann-Haupt, noted skeptically upon its release that Strange Justice took "a fragile hypothesis and then buil[t] a monumental case out of it."
Few constitutional scholars would deny that the Supreme Court has made tragic—even shameful—errors in interpreting the Constitution. Decisions like Dred Scott v. Sanford (1857), Plessy v. Ferguson (1896) and Buck v. Bell (1927) are nearly universally reviled—scholars who agree on little else agree that the Court in these cases got the meaning of the Constitution wrong. If the Court has erred in interpreting the meaning of the Constitution, it must also be possible for the Court to err by promulgating doctrines to guide judicial decision-making which are inconsistent with the Constitution’s meaning.
Yet the Court on Monday denied certiorari in United States Aid Funds v. Bible, a case which would have given the Court an opportunity to evaluate a doctrine that strikes at the core of “the Judicial Power” authorized by Article III and the Constitution’s guarantees of due process of law. In his lone dissent from the Court’s decision to deny review, Justice Clarence Thomas called for the Court to reconsider “Auer deference”—an administrative law doctrine that commands sweeping deference to federal agencies’ interpretations of regulations that the agencies themselves issue. In order to perform their constitutional duty and to safeguard Americans against arbitrary government power—power unconstrained by anything other than the will of those who hold it—the Court must heed Justice Thomas’ call. [Read More]