Monday, February 15, 2016

Oh brother. Missouri's Clarence Thomas may now have to write a dissenting Supreme Court opinion. Only he can't write.

What's the Missouri connection to the impact of the unexpected mid-session death of Supreme Court Justice Antonin Scalia?  Scalia generally wrote the dissenting opinions for the Supreme Court, which has often delivered 5/4 decisions.

The problem is, who will write those decisions now?  It may fall to the arch conservative from under the St. Louis Arch, Justice Clarence Thomas.

We all remember Thomas's horrible confirmation hearing, where his cohorts dragged Professor Anita Hill through the mud.  The jokes.  The Coke can.    The Saturday Night Live spoofs.

He was a joke.  But still made it to the bench, promoted by his lobbyist wife.  Thomas was largely considered to have been finally and reluctantly confirmed by the Senate as America's first token black--in order to provide at least one black vote on the Supreme Court.  Even tho he was promoted by his former boss, Sen. Jack Danforth, Thomas was never heralded by anyone as a brilliant mind, a widely respected jurist--or a good writer.  

And I doubt he has spent any time improving his writing or reasoning skills since he was handed this lifetime appointment. He has sat back and let Antonin Scalia, the smartest most facile mind on the court, do all the work, the heavy intellectual lifting for his team.

So I asked an attorney who has appeared before the Supreme Court.  Follows the cases, is up to date on what this can all mean for America.  He wisely chose to remain anonymous, but here is what he shared:

"I disagree with Scalia's interpretation of the Constitution.  An 'originalist' takes the position that if it wasn't in the Constitution when it was written, it is not a Constitutional question. Ergo, abortion did not exist as an issue when the Constitution was written so it is not a Constitutional question.   

Think of the things that did not exist then. Telephones, the internet, etc.  And of course, abortion has been used quietly since caveman days, as a backup to birth control or a very sad emergency remedy for a faulty or dangerous late term pregnancy.  Never ideal, never any woman's first choice.  Never any doctor's first choice. The very rare medical or moral option, including cases of rape and incest and medical necessity for the life of the mother.  And not the business of a bunch of politicians, who have persisted in using the issue as a GOTV/Get out the vote strategy, just like gun control is misused.

Scalia was bright and charming (just ask Justice Ruth Bader Ginsberg.)  But Scalia boxed himself in, with his obsession with being an Originalist.  When he got stuck, logic wise, he would revert to his interpretation of the Federalist papers. 

Only one other person on the court shared his Originalist view, Justice Clarence Thomas.  

Thomas probably joined every opinion that Scalia wrote. Thomas will be left in the lurch. He might have to write an opinion. This is an awful thought--as he can't write."

Now we are all waiting for the stunned 'Supremes' to review those tentative votes they took right after hearing oral arguments last fall.  To see if they are deadlocked at 4/4 decisions.  Dead men can't vote, so now Scalia's ballots will be discarded.  Not sure if the Court will reveal those.  

In some cases, if they issue their decision at 4/4, later this year, then the lower court's ruling that had been appealed to the Supreme Court of the land, will stand.  

That would be the case of a Texas abortion case.  So no wonder Presidential contender, Texas Senator Ted Cruz, is threatening to filibuster.  That's exactly what he wants...

Meanwhile, somebody send Justice Thomas a copy of Stephen King's book.  No, not the horror novels.  

Instead, send him King's book 
about how to be a better writer, 
practicing his craft.  
It's called "On Writing--a memoir of the craft".  
It's very good.  
Thomas may need it this summer.  
He's no longer warming the bench.  
He's gonna have to put on his pads 
and get on the field.

For a related story about the Supreme Court, and Obama's dilemma, and the secret idea some Republicans may soon realize is their solution for defeating Hillary Clinton, see

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