It’s been quite a week for connoisseurs of Clarence Thomas’s crank concurrences. He started with arguing that New York Times v. Sullivan should be overruled:
On Tuesday, Justice Clarence Thomas made a stunning announcement: The justice wants to overturn perhaps the most important free expression ruling in the Supreme Court’s history, New York Times v. Sullivan. That precedent, against which Thomas casually proclaimed war while voting to deny cert in the defamation case McKee v. Cosby, sharply limits the ability of public figures, including government officials, to sue their critics for libel. It remains the crucial safeguard of America’s free press, a bulwark against defamation suits designed to silence media outlets and chill public debate. If Thomas succeeded in killing off Sullivan, it would be, quite simply, the end of the First Amendment as we know it.
Decided in 1964, Sullivan was a disturbing illustration of how public officials could exploit libel laws to censor their critics. The case involved a full-page advertisement that civil rights advocates ran in the New York Times in 1960 condemning the Montgomery, Alabama Police Department. Titled “Heed Their Rising Voices,” the ad solicited funds to defend Martin Luther King Jr. against an Alabama perjury indictment. In describing state law enforcement’s abusive response to civil rights demonstrations, the ad made several factual errors—claiming, for instance, that King was arrested seven times, instead of four. It was, however, largely factual, and designed to alert readers nationwide of the police misconduct directed toward civil rights demonstrators in the South.
Overruling Sullivan is a great idea…if you’d like Peter Thiel and those similarly situated to be able to bankrupt any media institution they don’t like.
The thing is that Thomas isn’t wrong per se that Sullivan is inconsistent with the “original understanding” of the First Amendment. The problem is that neither were the Alien and Sedition Acts. The appropriate conclusion here is “orginalism is a bad theory,” not “we’re not allowed to learn anything after 1791.” Alas, I suspect that Gorsuch, Kavanaugh and Alito find Thomas’s ideas here intriguing and would like to subscribe to his newsletter.
I’ll have more about today’s civil forfeiture ruling imminently, but Thomas uses the forum to give us this Borkian classic:
And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v. Wade, 410 U.S. 113 (1973); Dred Scott v. Sandford, 19 How. 393, 450 (1857).
Notorious, eh? Gee, I wonder if Thomas perjured himself when he asserted at his confirmation hearings to have never considered Roe on the merits in his life.
And leaving aside the obvious, the argument doesn’t even make sense on its own terms; the result in Roe could be reached at least as easily under a privileges and immunities incorporation theory as the substantive due process one. It’s sort of the conservative equivalent to Ginsburg’s uncharacteristically silly argument that opponents of Roe would be checkmated if the decision had rested on equal protection grounds.