Thomas delivers the opinion of the Court, joined in full by Blackmun, Stevens, Scalia, and Souter, and joined in Parts I and III by White and Kennedy.
Scalia files a concurring opinion.
Kennedy files an opinion concurring in part and concurring in the judgment, joined by White.
O'Connor files a dissenting opinion, joined by Rehnquist.
The Court holds that when it applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcement of the rule.
Scalia is "provoke[d]" to "comment", not on Thomas' majority opinion, but on the dissent's "invoking stare decisis in defense of prospective decisionmaking" (applying a rule of federal law only to future cases, in contrast to retroactive decisionmaking). "[T]he dissent is saying, in effect, that stare decisis demands the preservation of methods of destroying stare decisis recently invented in violation of stare decisis." More so than Thomas, Scalia seeks to justify the Court's judgment on the basis of precedent -- going all the way back to Marbury v. Madison, 5 U.S. 137 (1803), and Blackstone. To Scalia, retroactivity is not just a legal doctrine; rather, it is "grounded" in the separation of powers, is "a principal distinction between the judicial and legislative power", and is "an inherent characteristic" of the former. Perhaps if some other justice had written the majority opinion, Thomas would have felt free to join Scalia's concurrence.
Tuesday, August 16, 2011
Tuesday, August 2, 2011
Richmond v. Lewis, 506 U.S. 56 (1992)
O'Connor delivers the opinion of the Court, joined by Rehnquist, White, Blackmun, Stevens, Kennedy, Souter, and Thomas.
Thomas files a concurring opinion.
Scalia files a dissenting opinion.
The Court holds that Richmond's death sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Arizona's aggravating factor that the offense was committed in an "especially heinous, cruel or depraved manner" was unconstitutionally vague at the time the sentencing judge gave it weight. The State Supreme Court did not cure this error, because it did not actually reweigh the aggravating and mitigating circumstances in affirming the sentence.
Of the cases in which Scalia and Thomas write separate opinions not joined in full by the other, this is the first in Thomas' second term, and the first in which Thomas' opinion is more favorable to the criminal defendant than Scalia's (in contrast to U.S. v. R.L.C. and Georgia v. McCollum).
In this case, Scalia and Thomas are like ships passing in the night. Scalia writes on the question of constitutionality, Thomas on the question of retroactivity (a decision announcing a new constitutional right for a criminal defendant may be applied retroactively). Scalia doesn't even mention retroactivity; Thomas doesn't opine on whether the mitigating cases he's applying retroactively were correctly decided.
Even more so than Georgia, this case gives lie to the accusation that Thomas doesn't believe in precedent. In Georgia, Thomas applied a decision, which was decided the term before Thomas joined the Court, with which he disagreed because the challengers weren't questioning it; here, he applies Stringer v. Black, 503 U.S. 222 (1992), despite being in dissent on that case. Perhaps if the challengers here had questioned Stringer.... Scalia and Thomas both employ precedent here -- they just focus on different precedent. Thomas relies explicitly on the less-than-a-year-old Stringer, and implicitly on the mitigating cases (which started with Woodson v. North Carolina, 428 U.S. 280 (1976)). Scalia, on the other hand, reaches back a few years earlier to Furman v. Georgia, 408 U.S. 238 (1972), which is an interesting choice, considering that was the case that invalidated all death penalty statutes throughout the country as they were then written. However, the principle of Furman remains good law, with which the mitigating cases are "rationally irreconcilable", and, unlike the mitigating cases, it is "arguably supported" by the text of the Eighth Amendment (Walton v. Arizona, 497 U.S. 639 (1990) (Scalia's opinion concurring in part and concurring in judgment)).
Thomas files a concurring opinion.
Scalia files a dissenting opinion.
The Court holds that Richmond's death sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Arizona's aggravating factor that the offense was committed in an "especially heinous, cruel or depraved manner" was unconstitutionally vague at the time the sentencing judge gave it weight. The State Supreme Court did not cure this error, because it did not actually reweigh the aggravating and mitigating circumstances in affirming the sentence.
Of the cases in which Scalia and Thomas write separate opinions not joined in full by the other, this is the first in Thomas' second term, and the first in which Thomas' opinion is more favorable to the criminal defendant than Scalia's (in contrast to U.S. v. R.L.C. and Georgia v. McCollum).
In this case, Scalia and Thomas are like ships passing in the night. Scalia writes on the question of constitutionality, Thomas on the question of retroactivity (a decision announcing a new constitutional right for a criminal defendant may be applied retroactively). Scalia doesn't even mention retroactivity; Thomas doesn't opine on whether the mitigating cases he's applying retroactively were correctly decided.
Even more so than Georgia, this case gives lie to the accusation that Thomas doesn't believe in precedent. In Georgia, Thomas applied a decision, which was decided the term before Thomas joined the Court, with which he disagreed because the challengers weren't questioning it; here, he applies Stringer v. Black, 503 U.S. 222 (1992), despite being in dissent on that case. Perhaps if the challengers here had questioned Stringer.... Scalia and Thomas both employ precedent here -- they just focus on different precedent. Thomas relies explicitly on the less-than-a-year-old Stringer, and implicitly on the mitigating cases (which started with Woodson v. North Carolina, 428 U.S. 280 (1976)). Scalia, on the other hand, reaches back a few years earlier to Furman v. Georgia, 408 U.S. 238 (1972), which is an interesting choice, considering that was the case that invalidated all death penalty statutes throughout the country as they were then written. However, the principle of Furman remains good law, with which the mitigating cases are "rationally irreconcilable", and, unlike the mitigating cases, it is "arguably supported" by the text of the Eighth Amendment (Walton v. Arizona, 497 U.S. 639 (1990) (Scalia's opinion concurring in part and concurring in judgment)).
Sunday, July 24, 2011
Two Pesos v. Taco Cabana, 505 U.S. 763 (1992)
White delivers the opinion of the Court, joined by Rehnquist, Blackmun, O'Connor, Scalia, Kennedy, and Souter.
Stevens files an opinion concurring in the judgment only.
Thomas files an opinion concurring in the judgment only.
Scalia files a concurring opinion.
The last case of Thomas' first term in which he and Scalia write separate opinions that aren't joined in full by the other is marked by more of a whimper than a bang.
The Court holds that trade dress which is inherently distinctive is protectable under § 43(a) without a showing that it has acquired secondary meaning, since such trade dress itself is capable of identifying products or services as coming from a specific source. "Because the Court reaches the same conclusion for different reasons" than his own, Thomas concurs in the judgment only. Scalia concurs in the Court's judgment and opinion. Because of its brevity, I quote Scalia's concurrence in full:
"I write separately to note my complete agreement with Justice Thomas's explanation as to how the language of § 43(a) and its common law derivation are broad enough to embrace inherently distinctive trade dress. Nevertheless, because I find that analysis to be complementary to (and not inconsistent with) the Court's opinion, I concur in the latter."
Scalia implicitly assumes that a justice cannot both 1) join in full the majority's opinion, and 2) join another justice's opinion that concurs in the judgment only. But would that be a justice having his cake and eating it too? Faced with what he sees as a mutually exclusive choice, Scalia chooses option 1). But considering he is in "complete agreement" with Thomas, why not chose option 2? It's not as if Scalia's vote is necessary to secure a majority: the majority would have had 6 votes even without Scalia's. Perhaps this is Scalia's way of saying that Thomas need not have concurred in the judgement only -- because Thomas' analysis is "complimentary to (and not inconsistent with) the Court's opinion," Thomas should have concurred in both the judgment and opinion. If that had been the case, Scalia would have felt free to join both the majority opinion and Thomas' opinion, and would not have found it necessary to write his own.
U.S. v. Fordice, 505 U.S. 717 (1992)
White delivers the opinion of the Court, joined by Rehnquist, Blackmun, Stevens, O'Connor, Kennedy, Souter, and Thomas.
O'Connor files a concurring opinion.
Thomas files a concurring opinion.
Scalia files an opinion concurring in the judgement in part and dissenting in part.
The Court holds that the courts below did not apply the correct legal standard in ruling that Mississippi has brought itself into compliance with the Constitution's Equal Protection Clause. If the State perpetuates policies and practices traceable to its prior de jure segregated university system that continue to have segregative effects -- whether by influencing student enrollment decisions or by fostering segregation in other facets of the system -- and such policies are without sound educational justification and can be practicably eliminated, the policies violate the Clause, even though the State has abolished the legal requirement that the races be educated separately and has established racially neutral policies not animated by a discriminatory purpose.
Thomas "write[s] separately to emphasize that this standard is far different from the one adopted to govern the gradeschool context in Green v. New Kent County School Bd., 391 U.S. 430 (1968), and its progeny. In particular, because it does not compel the elimination of all observed racial imbalance, it portends neither the destruction of historically black colleges nor the severing of those institutions from their distinctive histories and traditions. In Green, we held that the adoption of a freedom-of-choice plan does not satisfy the obligations of a formerly de jure gradeschool system should the plan fail to decrease, if not eliminate, the racial imbalance within that system."
According to Scalia, however, the Court's "requirement, which resembles what we prescribed for primary and secondary schools in Green...has no proper application in the context of higher education, provides no genuine guidance to States and lower courts, and is as likely to subvert as to promote the interests of those citizens on whose behalf the present suit was brought."
Thomas believes the lower courts' administration of the Court's standard will be "a far narrower, more manageable task than that imposed under Green." Scalia, on the other hand, makes it crystal-clear he sees the Court's standard as "unclear." Here are a few of the gems to be found in Scalia's opinion:
This case further demonstrates that Scalia is more interested in precedent than Thomas. "Application of the standard (or standards) announced today has no justification in precedent". Among others, Scalia relies on the Brown cases -- Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), and Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II) -- which "suggest that former de jure States have one duty: to eliminate discriminatory obstacles to admission." But "[i]f we are looking to precedent to guide us in the context of higher education, we need not go back 38 years to Brown I". The Court's standard(s) "in fact runs contrary to a case decided six years ago...Bazemore v. Friday, 478 U.S. 385 (1986)", right before Scalia joined the court. In Bazemore, the Court cabined Green to primary and secondary public schools, declining to extend it to state-financed youth clubs.
Thomas, on the other hand, seems more interested in attempting to distinguish Green than relying on other cases. He doesn't once refer to "precedent" (which Scalia uses twice) or its Latin equivalent. While he does cite to some cases, he cites to only one Brown -- Brown I, which he quotes only once -- and doesn't once mention Bazemore. Thomas seems to recognize that the Court's standard is, at the very least, not dictated by precedent: he refers to "the approach that we adopt today" and "the standard we announce today".
This case also further demonstrates that Thomas is more race-conscious than Scalia, who is more colour-blind. In Georgia v. McCollum, Thomas saw value in a black defendant being tried by a jury containing blacks; here, he sees value in a black student attending a historically black college. Scalia, however, is more cagey on the issue: "the elimination of predominantly black institutions...may be good social policy". "But whether or not the Court's antagonism to unintegrated schooling is good policy," neither justice believes the maintenance of historically black colleges is unconstitutional under the Equal Protection Clause. Scalia, though, doubts that their maintenance will be allowed under the Court's opinion. Obviously Thomas doesn't read the Court's opinion that way or he wouldn't have joined it in full. He "find[s] most encouraging" the Court's "hints". But if he reads the Court's hints correctly, then why does no other justice join his opinion? Scalia thinks Thomas is placing too much faith in what the Court says "but does not appear to mean":
"Once the confusion engendered by the Court's something-for-all, guidance-to-none opinion has been dissipated, compare...O'CONNOR...with...THOMAS...it will become apparent that, essentially, the Court has adopted Green."
O'Connor files a concurring opinion.
Thomas files a concurring opinion.
Scalia files an opinion concurring in the judgement in part and dissenting in part.
The Court holds that the courts below did not apply the correct legal standard in ruling that Mississippi has brought itself into compliance with the Constitution's Equal Protection Clause. If the State perpetuates policies and practices traceable to its prior de jure segregated university system that continue to have segregative effects -- whether by influencing student enrollment decisions or by fostering segregation in other facets of the system -- and such policies are without sound educational justification and can be practicably eliminated, the policies violate the Clause, even though the State has abolished the legal requirement that the races be educated separately and has established racially neutral policies not animated by a discriminatory purpose.
Thomas "write[s] separately to emphasize that this standard is far different from the one adopted to govern the gradeschool context in Green v. New Kent County School Bd., 391 U.S. 430 (1968), and its progeny. In particular, because it does not compel the elimination of all observed racial imbalance, it portends neither the destruction of historically black colleges nor the severing of those institutions from their distinctive histories and traditions. In Green, we held that the adoption of a freedom-of-choice plan does not satisfy the obligations of a formerly de jure gradeschool system should the plan fail to decrease, if not eliminate, the racial imbalance within that system."
According to Scalia, however, the Court's "requirement, which resembles what we prescribed for primary and secondary schools in Green...has no proper application in the context of higher education, provides no genuine guidance to States and lower courts, and is as likely to subvert as to promote the interests of those citizens on whose behalf the present suit was brought."
Thomas believes the lower courts' administration of the Court's standard will be "a far narrower, more manageable task than that imposed under Green." Scalia, on the other hand, makes it crystal-clear he sees the Court's standard as "unclear." Here are a few of the gems to be found in Scalia's opinion:
- "Before evaluating the Court's handiwork, it is no small task simply to comprehend it."
- "At the end of the day, then, the Court dilutes this potentially useful concept to the point of such insignificance that it adds nothing to the Court's test except confusion. It will be a fertile source of litigation."
- "In short, except for the results that it produces in the present case (which are what they are because the Court says so), I have not the slightest idea how to apply the Court's analysis -- and I doubt whether anyone else will."
Thomas, on the other hand, seems more interested in attempting to distinguish Green than relying on other cases. He doesn't once refer to "precedent" (which Scalia uses twice) or its Latin equivalent. While he does cite to some cases, he cites to only one Brown -- Brown I, which he quotes only once -- and doesn't once mention Bazemore. Thomas seems to recognize that the Court's standard is, at the very least, not dictated by precedent: he refers to "the approach that we adopt today" and "the standard we announce today".
This case also further demonstrates that Thomas is more race-conscious than Scalia, who is more colour-blind. In Georgia v. McCollum, Thomas saw value in a black defendant being tried by a jury containing blacks; here, he sees value in a black student attending a historically black college. Scalia, however, is more cagey on the issue: "the elimination of predominantly black institutions...may be good social policy". "But whether or not the Court's antagonism to unintegrated schooling is good policy," neither justice believes the maintenance of historically black colleges is unconstitutional under the Equal Protection Clause. Scalia, though, doubts that their maintenance will be allowed under the Court's opinion. Obviously Thomas doesn't read the Court's opinion that way or he wouldn't have joined it in full. He "find[s] most encouraging" the Court's "hints". But if he reads the Court's hints correctly, then why does no other justice join his opinion? Scalia thinks Thomas is placing too much faith in what the Court says "but does not appear to mean":
"Once the confusion engendered by the Court's something-for-all, guidance-to-none opinion has been dissipated, compare...O'CONNOR...with...THOMAS...it will become apparent that, essentially, the Court has adopted Green."
Thursday, July 14, 2011
Georgia v. McCollum, 505 U.S. 42 (1992)
The second case in which Scalia and Thomas each write separate opinions not joined in full by the other, this is the first case in which they are on opposite sides.
Blackmun delivers the opinion of the Court, joined by Rehnquist, White, Stevens, Kennedy, and Souter.
Rehnquit files a concurring opinion.
Thomas files an opinion concurring in the judgement only.
O'Connor files a dissenting opinion.
Scalia files a dissenting opinion.
The Court rules that the Constitution's Equal Protection Clause prohibits a criminal defendant from using peremptory challenges to exclude jurors on account of race. A defendant can use his limited number of peremptory challenges for no reason or any reason (he doesn't have to have cause) -- as long as that reason is not the race of the prospective juror. Neither Scalia nor Thomas believes that's that what the Constitution actually says. Both express concern about the decision's effect on defendants' rights, although Thomas is more interested in the plight of black defendants than Scalia is. Most of Thomas' concurrence is devoted to criticizing the Court's "continuing attempts to use the Constitution to regulate peremptory challenges," and this portion of his concurrence is longer than Scalia's entire dissent. So then why does Thomas concur in the Court's judgment, and Scalia dissent (and not even "respectfully," as is customary and as O'Connor did in her longer dissent)? While Scalia "agree[s] with the Court that its judgment follows logically from Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)" -- where the Court held that the Equal Protection Clause prohibits a private litigant in a civil case from using peremptory challenges to exclude jurors on account of race -- Scalia believes "that a bad decision should not be followed logically to its illogical conclusion."
"Because the respondents do not question Edmonson," Thomas, however, "believe[s] that we must accept its consequences." Is Thomas accepting Edmonson's consequences simply because the challengers are not questioning Edmonson? Since this is his first term on the Court, Thomas may be reticent to decline to extend a decision reached just the previous term. Scalia, however, has been on the Court for a little more than half a decade. Additionally, he was on the Court when it decided Edmonson, and he was in the dissent. Now, he has the precedent, so to speak, of his own dissent to rely on. Thomas has been accused of not believing in precedent. In Ken Foskett's biography, Judging Thomas: The Life and Times of Clarence Thomas, even Scalia is quoted as saying, "Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right." This case shows that that's simply not the case. Nevertheless, perhaps even in this case, Scalia is more committed to precedent than Thomas -- just not the precedent of recent Supreme Court decisions (1986, 1991) -- but rather the precedent of "the ages old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair."
Blackmun delivers the opinion of the Court, joined by Rehnquist, White, Stevens, Kennedy, and Souter.
Rehnquit files a concurring opinion.
Thomas files an opinion concurring in the judgement only.
O'Connor files a dissenting opinion.
Scalia files a dissenting opinion.
The Court rules that the Constitution's Equal Protection Clause prohibits a criminal defendant from using peremptory challenges to exclude jurors on account of race. A defendant can use his limited number of peremptory challenges for no reason or any reason (he doesn't have to have cause) -- as long as that reason is not the race of the prospective juror. Neither Scalia nor Thomas believes that's that what the Constitution actually says. Both express concern about the decision's effect on defendants' rights, although Thomas is more interested in the plight of black defendants than Scalia is. Most of Thomas' concurrence is devoted to criticizing the Court's "continuing attempts to use the Constitution to regulate peremptory challenges," and this portion of his concurrence is longer than Scalia's entire dissent. So then why does Thomas concur in the Court's judgment, and Scalia dissent (and not even "respectfully," as is customary and as O'Connor did in her longer dissent)? While Scalia "agree[s] with the Court that its judgment follows logically from Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)" -- where the Court held that the Equal Protection Clause prohibits a private litigant in a civil case from using peremptory challenges to exclude jurors on account of race -- Scalia believes "that a bad decision should not be followed logically to its illogical conclusion."
"Because the respondents do not question Edmonson," Thomas, however, "believe[s] that we must accept its consequences." Is Thomas accepting Edmonson's consequences simply because the challengers are not questioning Edmonson? Since this is his first term on the Court, Thomas may be reticent to decline to extend a decision reached just the previous term. Scalia, however, has been on the Court for a little more than half a decade. Additionally, he was on the Court when it decided Edmonson, and he was in the dissent. Now, he has the precedent, so to speak, of his own dissent to rely on. Thomas has been accused of not believing in precedent. In Ken Foskett's biography, Judging Thomas: The Life and Times of Clarence Thomas, even Scalia is quoted as saying, "Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right." This case shows that that's simply not the case. Nevertheless, perhaps even in this case, Scalia is more committed to precedent than Thomas -- just not the precedent of recent Supreme Court decisions (1986, 1991) -- but rather the precedent of "the ages old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair."
Tuesday, July 12, 2011
U.S. v. R. L. C., 503 U.S. 291 (1992)
Almost two decades before Brown v. Entertainment Merchants Assn….on March 4, 1992, a little more than four months after Thomas assumed office and approximately halfway through his first term, this is the first case in which Scalia and Thomas each write separate opinions which are not joined in full by the other.
Souter writes the opinion, joined in full by Rehnquist, White, and Stevens, and in part by Scalia, Kennedy, and Thomas.
Scalia files an opinion concurring in part and concurring in the judgment, joined in full by Thomas (along with Kennedy).
Thomas files an opinion concurring in part and in the judgment, joined by no other justice.
Thomas writes separately to emphasize what he views as a limitation on the operation of the rule of lenity. The rule of lenity is a tool of statutory construction under which a court, in construing an ambiguous criminal statute, should resolve the ambiguity in favor of the defendant. Thomas views the rule of lenity as a tool of last resort -- to be used only if the “innumerable rules of construction” are not “powerful enough to make clear an otherwise ambiguous penal statute.” A defendant would likely be less favored with this limitation on the rule of lenity than without it. After the court has “seized every thing from which aid can be derived” (except, of course, legislative history), fewer statutes would be found ambiguous, and thus fewer would trigger the rule of lenity. Thomas does not justify this limitation except to cite to the case reaffirming it, Chapman v. U.S., 500 U.S. 453 (1991). It is not surprising that Chapman, decided the term before Thomas joined the Court, was not written by Scalia (but by Rehnquist, although Scalia did join in full and did not write his own opinion). Thomas indicates that he is willing to go further than Scalia to come to the rescue of ambiguous text -- and the Congress that enacted it -- and thus save the statute from the rule of lenity; he indicates he is more willing to resort to the “well established principles of statutory construction” in order to save the statute from one of those principles.
Souter writes the opinion, joined in full by Rehnquist, White, and Stevens, and in part by Scalia, Kennedy, and Thomas.
Scalia files an opinion concurring in part and concurring in the judgment, joined in full by Thomas (along with Kennedy).
Thomas files an opinion concurring in part and in the judgment, joined by no other justice.
Thomas writes separately to emphasize what he views as a limitation on the operation of the rule of lenity. The rule of lenity is a tool of statutory construction under which a court, in construing an ambiguous criminal statute, should resolve the ambiguity in favor of the defendant. Thomas views the rule of lenity as a tool of last resort -- to be used only if the “innumerable rules of construction” are not “powerful enough to make clear an otherwise ambiguous penal statute.” A defendant would likely be less favored with this limitation on the rule of lenity than without it. After the court has “seized every thing from which aid can be derived” (except, of course, legislative history), fewer statutes would be found ambiguous, and thus fewer would trigger the rule of lenity. Thomas does not justify this limitation except to cite to the case reaffirming it, Chapman v. U.S., 500 U.S. 453 (1991). It is not surprising that Chapman, decided the term before Thomas joined the Court, was not written by Scalia (but by Rehnquist, although Scalia did join in full and did not write his own opinion). Thomas indicates that he is willing to go further than Scalia to come to the rescue of ambiguous text -- and the Congress that enacted it -- and thus save the statute from the rule of lenity; he indicates he is more willing to resort to the “well established principles of statutory construction” in order to save the statute from one of those principles.
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