March 8, 2009

YOU MEAN HE CAN THINK FOR HIMSELF?:

Clarence Thomas, Supreme Court liberal?: In a decision last week against the drug company Wyeth, it was the court's most conservative justice who most harshly criticized a Bush administration legal policy. (David G. Savage, March 8, 2009, LA Times)

The Supreme Court opinion that drew the most praise last week from a proudly "progressive" constitutional law group was written by perhaps the court's staunchest conservative, Justice Clarence Thomas.

Thomas would have gone further than the court's liberals in a decision that allowed injured patients to sue drug makers. In a 24-page concurrence, he said the court should have declared that judges have no authority to void state consumer-protection laws based on "agency musings" from Washington. [...]

Thomas has never been shy about breaking with conventional wisdom -- even when it is the conservative consensus. Over the years, he has spelled out a distinctive approach in several areas of the law. And his views do not always yield predictably conservative results.

Four years ago, for example, the court, with Justices Antonin Scalia and Anthony M. Kennedy in the majority, upheld the power of federal agents to raid the homes of Californians who grow marijuana for their personal use -- legal under state law but not federal law. Thomas disagreed.

In earlier opinions, he disputed the broad reach of federal regulatory power, a view welcomed by some business groups. In the marijuana case, Thomas repeated the same view, but this time on the side of Angel Raich, an Oakland woman who challenged the federal raids.

"If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything," Thomas wrote in dissent. " . . . Our federalist system, properly understood, allows California and a growing number of other states to decide for themselves how to safeguard the health and welfare of their citizens."

Thomas is often alone on the current court as a steady advocate of limited federal power and respect for states' authority.

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Posted by Orrin Judd at March 8, 2009 6:40 AM
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