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Crossover Sensation, Justice Thomas

(to borrow a line from John Elwood). See Atlantic Sounding Co. v. Townsend.

rick.felt:
Haven't read it yet, but Thomas writes a good admiralty opinion, and I would expect this one to be quite good, as well.
6.25.2009 10:37am
SamW:
Thomas and the majority reasoning seems pretty straight forward: if Congress did not explictly change the common law of remedies, there is no reason for the court to do so.
6.25.2009 10:53am
Richard Riley (mail):
Thomas furthering the traditional role of the federal courts here as friend and protector of merchant seamen.
6.25.2009 10:57am
Sasha Volokh (mail) (www):
Plus, he wants to strip-search 13-year-old girls.
6.25.2009 11:01am
NaG (mail):
Justice Thomas has actually had a pretty good run this term. Even his dissents have included partial concurrences.
6.25.2009 11:07am
ruuffles (mail) (www):

Plus, he wants to strip-search 13-year-old girls.

Yes but does he want to cavity search them, too? But seriously, does his dissent go that far?
6.25.2009 11:08am
Bob White (mail):
As a prior Justice Thomas defender and someone who took Admiralty law, but is generally not a fan of punitive damages, I enjoyed this opinion and thought it was quite correct.

On his strip search case opinion, I thought the way he came down was utterly predictable-he simply doesn't believe that schoolchildren have many, if any, rights. I'm not sure I like that interpretation, but it is a consistent and principled one.
6.25.2009 11:36am
Chris 24601 (mail) (www):
Makes me hungrier for a resolution of the Exxon v. Baker vicarious-liability question.
6.25.2009 11:36am
ruuffles (mail) (www):

I'm not sure I like that interpretation, but it is a consistent and principled one.

Maybe you should save that declaration for the day when the court decides whether 18 year old high school students' can bear arms in school.
6.25.2009 11:41am
John Thacker (mail):
On his strip search case opinion, I thought the way he came down was utterly predictable-he simply doesn't believe that schoolchildren have many, if any, rights.


And even more so, it's predictable because he doesn't see the point in drawing a line there. Why allow searches but not searching in one place? It would make more sense in his mind to ban them entirely than to ban searching one specific hiding place.
6.25.2009 11:42am
ruuffles (mail) (www):

And even more so, it's predictable because he doesn't see the point in drawing a line there. Why allow searches but not searching in one place? It would make more sense in his mind to ban them entirely than to ban searching one specific hiding place.

So how does Thomas plan to deal with this "line drawing" when it comes to the 2nd amendment?
6.25.2009 11:43am
John Thacker (mail):
Maybe you should save that declaration for the day when the court decides whether 18 year old high school students' can bear arms in school.


ruuffles, do you prefer then his and Scalia's vote on the Confrontation Clause case today? The same Apprendi Five formed the majority, Scalia, Thomas, Stevens, Souter, Ginsburg. Defendants have a right to confront lab workers who produce reports, should they so desire. The pragmatist Four fell on the other side.
6.25.2009 11:44am
John Thacker (mail):
So how does Thomas plan to deal with this "line drawing" when it comes to the 2nd amendment?


If it comes to minor school children? I'm certain he'd allow schools to ban them.

In other cases? I'd need more information to say and more rulings. But in general Justice Thomas is all-or-nothing about whether rights exist; he doesn't turn much on small pragmatic details. Hence the Confrontation Clause or Right to Jury is absolute, even if impractical, but if some searches are allowed, then all are.

He's issued opinions saying that he's against all traffic stops, but that he sees no need to distinguish between those for alcohol and those for drugs and those for licenses.

He's issued opinions saying that he's against the entire FCC regulation of obscenity set out in Red Lion and Pacifica, but doesn't really care with exactly how the FCC goes about regulating. Unlike, say, Stevens, who specifically noted that he still agrees with Pacifica, but just thought that the FCC was doing it wrong.
6.25.2009 11:50am
Abercrombie:
"Plus, he wants to strip-search 13-year-old girls."

What a disgusting, weak attempt at humor.
6.25.2009 11:53am
Snaphappy:
Justice Thomas wants to return to the concept of schools acting in loco parentis, which means they can do any damn thing your crazy old man would do.
6.25.2009 12:00pm
ruuffles (mail) (www):

But in general Justice Thomas is all-or-nothing about whether rights exist; he doesn't turn much on small pragmatic details.

I'll just pick one at random: what are "arms"? How does Thomas plan to decide what weapon qualifies to be protected under the 2nd?

Fully automatics?
Machine guns?
Should fired missiles?
Snukes?
6.25.2009 12:06pm
Observer:
I hope this is not an omen that Thomas is now switching sides like Kennedy did.
6.25.2009 12:11pm
Respondent:
Melendez-diaz is why the Sotamayor nomination is so important. Her pro-prosecutor insticts and track-record of being anti-Apprendi (unlike even Roberts) mean she's likely to create a new pragmatist five.
6.25.2009 12:11pm
cjwynes (mail):
Speaking of the Apprendi coalition, anybody got any clue where Sotomayor would fall on Apprendi or Crawford issues?

I bet alot of criminal defense attorneys who voted for Obama would be shocked if they stopped to think for a moment that by replacing Souter with Sotomayor they are risking the loss (or the artificial narrowing to the same effect) of Crawford and Apprendi/Ring/Blakely, undoubtedly the most important categorical recognition of defendants' rights in the last 20 years. The stupidly simplistic left/right view of the court strikes again.
6.25.2009 12:14pm
s_y:
And what would Thomas say if instead of strip searching the girl they had her stomach pumped to see if she swallowed the Advil? Still okay since they have reasonable suspicion to think the pills were on her person? If the school can search her bag and clothes then they can search anywhere?

Thomas seems to be afraid to ever consider the reasonable of a search and rather draw bright lines. Of course, such bright lines abdicates the need for official to use reasoned judgment. Lack of reasoned judgment, of course, results in unreasonable searches.
6.25.2009 12:15pm
mcbain:

Fully automatics?
Machine guns?
Should fired missiles?


all of those are already defined as arms and are protected by the 2nd. Congress made it a hassle aquiring them, but you can still do so legally.

Also "Fully automatics" and Machine guns are the same thing.
6.25.2009 12:16pm
ruuffles (mail) (www):

all of those are already defined as arms and are protected by the 2nd. Congress made it a hassle aquiring them, but you can still do so legally.

Forget Congress. What about the states? Don't they have rights?
6.25.2009 12:22pm
ruuffles (mail) (www):

I bet alot of criminal defense attorneys who voted for Obama would be shocked if they stopped to think for a moment that by replacing Souter with Sotomayor they are risking the loss (or the artificial narrowing to the same effect) of Crawford and Apprendi/Ring/Blakely, undoubtedly the most important categorical recognition of defendants' rights in the last 20 years.

How would White and Blackmun have voted? Clinton's replacements split, but I highly doubt criminal defense attorneys who voted for Clinton regret the risk. I realize Thomas was appt'd by Bush I but he could have easily appt'd a Kennedy, roberts , or Alito if re-elected.
6.25.2009 12:25pm
methodact:
There are plans to eventually place passive millimeter-wave full body scanners in schools.

Whether the outcome of Safford Unified School District v. April Redding has any direct bearing on that, remains to be seen.
6.25.2009 12:30pm
cboldt (mail):
-- What about the states? Don't they have rights? --
[Presser v. Illinois] the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms ... it clear that [the state's power/right to regulate parades does] not have this effect.
6.25.2009 12:34pm
ruuffles (mail) (www):


[Presser v. Illinois] the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms ... it clear that [the state's power/right to regulate parades does] not have this effect.

If Congress adopts a broad definition of "arms," are the states forced to accept that definition? Or is there a constitutional floor as to what constitutes "arms" and laws passed by Congress only restricts federal laws?
6.25.2009 12:48pm
Anon321:
Speaking of the Apprendi coalition, anybody got any clue where Sotomayor would fall on Apprendi or Crawford issues?

Good question, and one whose importance hasn't received sufficient attention so far. When Alito was nominated, I recall a post by Marty Lederman listing those 5-4 decisions in which O'Connor had sided with the liberals. He identified those as being the ones most susceptible to change with Alito's appointment (and I believe those predictions have already been borne out, to a certain degree).

Has anyone seen a similar list for Souter? Specifically, it would probably entail 5-4 cases in which Souter was on the winning side and at least one of Stevens, Breyer, or Ginsburg was on the other side -- with the implication being that if Sotomayor is more like them than she is like Souter, the change in membership could result in a change in the law. Apprendi and Crawford are the only examples that come immediately to mind, but there must be others. Has anyone seen anything shedding light on this subject? (Sorry for being lazy and asking rather than looking myself.)
6.25.2009 12:53pm
ruuffles (mail) (www):
6.25.2009 12:56pm
mcbain:

Forget Congress. What about the states? Don't they have rights?


I believe that question was convincingly answered in 1865.
6.25.2009 12:57pm
ruuffles (mail) (www):

I believe that question was convincingly answered in 1865.

Yes thanks for the history lesson. I made a more clear question @12:48.
6.25.2009 12:59pm
Anon321:
Thank you, sir.
6.25.2009 12:59pm
mcbain:
In practical terms, certain states prohibit certain forms of exercising the 2nd amendment. This is inconsistent with most of the bill of rights and brings up the question of incorporation which it seems will be decided soon, and probably in favor of incorporation, since the idea of states rights is all but dead.

This, and specifically Thomas' attitude towards incorporation was discussed here before (I don't remember the article).
6.25.2009 1:08pm
LTR:
How would White and Blackmun have voted

White was a knee-jerk supporter of police and prosecutors, and Blackmun was not far from that either even in his senile years when he played The Last Great Liberal. So Clinton's appointees were a +1 net gain for pro-defendant camp.

It's so funny that the only issue where Sotomayor can move the Court is the defendant rights issue, and there the push can only be to right. That's Barry's present for his Racial Politics Über Alles approach to picking a SCOTUS nominee.
6.25.2009 1:20pm
cboldt (mail):
-- I made a more clear question @12:48 --
.
It may be a clear question, but it lacks a clear/precise answer. Just like this one: If a state adopts a broad definition of "arms," are Congress and the Supreme Court forced to accept that definition?
6.25.2009 1:25pm
SeaDrive:

On his strip search case opinion, I thought the way he came down was utterly predictable-he simply doesn't believe that schoolchildren have many, if any, rights.


IANAL, but speaking as a parent, I'm a little surprised that there hasn't been more of a response to this decision. After all, the SC did not forbid the school from having "no strip search" policies. Schools are, and should be, very sensitive to parents, and state legislators are, and should be, sensitive to voters.
6.25.2009 1:27pm
rick.felt:
I'll just pick one at random: what are "arms"? How does Thomas plan to decide what weapon qualifies to be protected under the 2nd?

Fully automatics?
Machine guns?
Should fired missiles?
Snukes?


All of the above! I happen to think that the 2nd Amendment protects the right of individuals to keep and bear aircraft carriers and weaponized smallpox. There is no "reasonable restrictions" clause to the 2nd Amendment.

Once it's made clear that the 2nd Amendment protects every conceivable weapon, there will be a rush to amend it, which everyone will support. Then we can have a real debate over the proper level of restrictions on weapons based on our current values, not based on what we believe our values were in 1789.
6.25.2009 1:38pm
ruuffles (mail) (www):

It's so funny that the only issue where Sotomayor can move the Court is the defendant rights issue, and there the push can only be to right. That's Barry's present for his Racial Politics Über Alles approach to picking a SCOTUS nominee.

That would be true for almost any nominee Obama can get past the Senate without turning it into Bork: The Remake. Souter may be to the right of Stevens and Ginsburg, but only a teeny tiny bit, and certainly not as much as Breyer.

And to address your second sentence: would Merrick Garland, the leading white male candidate, have pushed it to the left?
6.25.2009 1:44pm
Jacob Berlove:
Arizona v. Ring can also be added to the Apprendi coalition list. And Sotamayor's guideline-centric jurisprudence and general pro-prosecution tilt leads to believe that she will vot with Breyer in these cases. In general, I think she's going to vote significantly more often than SOuter in favor of the police and prosecution, and probably even more to the right than Breyer. Remember that she voted (unlike Breyer) against excluding evidence found based on an expired warrant where the police had poor record keeping.
6.25.2009 1:56pm
luagha:

I think the Miller case makes it very clear what appropriate 'arms' are. Anything that is issued to the military and controlled by a single person. That would include fully automatic weapons of most types but not crew-served weapons, a good quantity but not all shoulder-fired missiles, and never nuclear weapons which always require multiple decision-makers.

And as technology progresses, the definition progresses as well.
6.25.2009 2:04pm
ruuffles (mail) (www):

never nuclear weapons which always require multiple decision-makers.

Clearly you've never watched 24.

What about anthrax? Homemade pipe bombs of the Unabomber variety? Semtex? Etc etc.
6.25.2009 2:10pm
ruuffles (mail) (www):

Anything that is issued to the military and controlled by a single person.

Sorry . I missed this last part. Do you mean in order to use, it can be controlled by a single person, or military policy allows it to be controlled by a single person?
6.25.2009 2:11pm
LTR:
@ruufles

I don't think Republicans are currently capable of pulling Bork: A Remake even if nominee was Rev Wright. With 59 or 60 Democrats Obama could have picked to biggest liberal in the country for Souter seat. But his primary objective was to find a qualified brown-skinned person with a vagina, even if she's probably somewhat more conservative at least on one important issue than most liberals would wish.

Speaking of Merrick Garland, I don't think he was really on a short-short list this time around. Only way I can see Obama nominating a centrist white male is Kennedy or Scalia vacany and/or Republicans winning back the Senate.
6.25.2009 2:40pm
cboldt (mail):
-- I think the Miller case makes it very clear what appropriate 'arms' are ... --
... has some reasonable relationship to the preservation or efficiency of a well regulated militia ... [or] any part of the ordinary military equipment or that its use could contribute to the common defense.

Specifically cited were state of the art contemporary firearms and blades. Muskets, rifles, and swords. This sort of attention was appropriate in the Miller case, because the firearm in question was a shotgun with a barrel under 18 inches in length.
6.25.2009 2:42pm
Anon321:
It's so funny that the only issue where Sotomayor can move the Court is the defendant rights issue, and there the push can only be to right. That's Barry's present for his Racial Politics Über Alles approach to picking a SCOTUS nominee.

As ruufles already noted, the point is that defendants' rights appear to be (nearly) the only significant area where any nominee replacing Souter could move the Court. Nothing about the analysis is dependent on Sotomayor being the nominee. I don't see how this fact reflects anything about Obama; it's really only a reflection on the current formation of the Court.
6.25.2009 3:38pm
drunkdriver:
As a lawyer with a seaman case in a good venue, where the defendants failed to pay for my guy's surgery for 2 years without a contrary medical opinion, I am a happy camper today. One thing making this decision extraordinary is the Court has repudiated contrary decisions by the 9th and 5th circuits, which have heavy maritime caseloads and are influential in federal and state courts; you don't see that every day.

From cases arising from today onward though, I predict you won't see a big increase in punitive damage litigation. The defendants will simply shift towards more willingly paying m&c- in my opinion, what they should have been doing all along.

The oral arguments were interesting- and revealing, as the justices showed they are not that familiar with maritime law (the ones who spoke at argument, anyway). I don't mean that as criticism by the way. Nobody can be an expert in every field. Score one for Professor Robertson, whose views were highly influential on the final product; this should underscore again his reputation as Final Boss of Maritime Law.
6.25.2009 7:28pm
Nunzio:
Morgan is the last case I can think of that featured this line up.
6.25.2009 7:49pm
John Thacker (mail):
Morgan is the last case I can think of that featured this line up


Then you're not thinking hard enough. :)

It's the Apprendi majority. More or less, that means Ring v. Arizona, Blakely v. Washington, United States v. Booker, and Arizona v. Gant. All of which could possibly switch. (Booker was complicated, but the pro-jury trial part could switch.)

Oh, Kyllo v. United States (detect pot heat lamps with thermal imaging) was similar, but with Breyer switched for Stevens.
6.25.2009 8:24pm
Brian G (mail) (www):
Just because Thomas votes with the more knowledgeable justices once in a while doesn't change the fact that he wouldn't be on the court if he weren't black and that he is perhaps the most intellectually lacking justice in the history of the court.
6.25.2009 8:52pm
Soronel Haetir (mail):
I'm actually surprised by the number of maritime injury cases SCOTUS takes. Just seems like an area that would have shaken out a long time ago. Especially an issue as simple as the one presented here.

Also, I see this line up as being quite a bit different from Aprendi etc in that Scalia was not onboard this one. Scalia and Thomas together against the mushy middle makes way more sense than Thomas tacking with the liberal side here.
6.25.2009 9:20pm
Respondent:
To be fair, Sotamayor will probably move the court to the left in business cases, and may sound the death knell for the Supreme Court's attempt to limit excessive punitive damages under the due process clause.
6.25.2009 11:20pm
Respondent:
John Thacker,

The Morgan lineup was cited for the last time Thomas voted with the four liberals prior to Atlantic Sounding. You're referring to the Melendez-Diaz lineup.
6.25.2009 11:23pm
John Thacker (mail):
You are right and I apologize. My mind drifted as to which court case we were talking about, or perhaps the thread did. Of course that commenter was talking about the original case at the top of the thread.

Probably because Melendez-Diaz and the entire Apprendi line of cases strikes me as more relevant, and I really am thinking about what Sotomayor means for that.
6.26.2009 12:39am

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