Everyone should know more about Clarence Thomas than just that he's a pervy dork, which the Anita Hill hearings should have made quite obvious. Before law school, I knew only a little about him:
1. that he votes conservative on almost all issues except ones about porn (you can probably guess why that is)
2. that he almost never talks -- every description of his role in Supreme Court cases mentions that it is really awkward that the other eight justices can converse like intelligent adults and the weird leery justice just sits there
3. everything from the confirmation hearings (e.g., the Coke can pubic hair)
4. that his cultural tastes are really odd for a black person or for a Supreme Court justice -- he drives around in an RV all summer, going to NASCAR and sleeping in Wal-Mart parking lots (really!)
Anyway, I knew he was weird and suspected he was slightly dumb; despite what he says (and probably even thinks), he is only where he is right now because of affirmative action. But the truth of his opinions is so much worse than that! He's currently on a media blitz promoting his new memoir: you may have seen him on 60 Minutes or other news shows, or breaking his silence for a 90-minute interview on Rush Limbaugh. (Again, I am not kidding. He even presided over Rush Limbaugh's wedding ceremony.) Talking with people like Limbaugh is just not the kind of thing that Supreme Court justices are supposed to do! The other justices tend to do things like participating in international conferences on jurisprudence at the Sorbonne. This tendency is not characteristic of either side of the Court's spectrum: Scalia, Kennedy, Breyer -- all are engaged in serious intellectual debates and scholarship outside of the court. Clarence Thomas listens to Rush Limbaugh.
We've been reading about the history of interpreting the Commerce Clause (part of Article 1, Section 8 of the Constitution), which gives Congress the power to pass laws regulating interstate commerce. During and after the Great Depression, Congress naturally wanted to pass new regulatory and labor laws due to the fact that commerce had been totally dysfunctional. Without getting into the whole debate, it's important to know that the Supreme Court went along with granting Congress the power to pass laws regulating a lot of commercial activity even if that activity took place entirely within the borders of a single state (under the theory that the national market would be affected by the actions of a single state), or if that activity is not strictly "commercial" but that it affects commerce. A good example of the latter would be certain civil rights laws prohibiting a restaurant like Whitey's Hamburgers in Charleston, S.C. from refusing to serve black customers. The reasoning is that Congress can make this South Carolina restaurant follow a federal law (because you know the S.C. politicians would never do anything about it) because discriminatory policies hurt nationwide commerce. If any restaurant could discriminate, that would seriously hurt the opportunities for any black people to go out and spend money on food. ["Whitey's" is a hypothetical case based on similar real ones.]
So, to relate this to Clarence Thomas in the 1990s: a 1995 Supreme Court ruling struck down a 1990 federal law that made it a crime to carry a gun on school property. The law tried to use the Commerce Clause to justify its authority, saying that unsafe schools would adversely affect interstate commerce -- gun violence leads to bad schools which leads to a malfunctioning economy. This argument lost, and the law was deemed unconstitutional by a 5-4 vote.
Clarence Thomas voted in the majority on this case (United States v. Lopez). What's scary about his vote here and on many other cases is that he tries to define a term like "commerce" in a decontextualized vacuum that essentially makes the use of the word so limited that Congress's power to use the clause is extremely tiny. Thomas writes something like this: "Commerce" was sometimes used distinctly from "manufacturing" and "agriculture." So "commerce" must be different from anything related to manufacturing. The Commerce Clause would give Congress the power to regulate the trade of an item across state lines... and that's essentially it.
So when the framers and the ratifying conventions put in this clause, what does Clarence Thomas think that they were thinking? Of course if he'd actually read what they were thinking, from reports of the constitutional conventions, he'd have known that the late 18th-century American economy was totally tanking because, in part, the states had no coherent economic policy, and so the smart framers wanted for Congress to manage commerce in a way that no single self-interested state legislature could. But Thomas seems content to cherry-pick some quotes that suggest that ONE meaning of "commerce" was distinct from "manufacturing," limiting commerce to the actual sale of goods across state lines. His definition of "commerce" naturally means that Congress can't regulate much of anything, giving us the unregulated nightmare of the Great Depression or the privatized, no-bid, unregulated commerce of Halliburtons and Blackwaters.
The only silver lining is that even Justice Scalia recognizes that CT is the epitome of the activist judiciary against which conservatives have so frequently complained. CT's "opinions" don't recognize judicial precedent -- he simply claims a power to read the mind of a random Founding Father who would, CT says, never have let Congress do almost anything, but would have let the executive have free reign. At least CT is smart enough to do the bidding of the Bushies who have given him everything he has -- his jobs, his RV, his cans of Coke. He's become the perfect "injured" conservative because of the confirmation hearings -- thinking that the country is taking his way of life away from him despite the obvious political and economic domination of this country by the right for the last 27 years.
If only Clarence could speak up when the Court is in session about some of his kooky ideas about the Constitution, then the other Justices could tell him that he's totally fucked up just like Anita Hill did when he started talking about zoophilia. My idea would be to pass the Jackie Treehorn Act: use the Commerce Clause to protect the adult film industry, and then see what CT thinks. Justice Thomas forgets that the brain is the biggest erogenous zone...
