Tom Goldstein at SCOTUSblog has done an impressive analysis of the Supreme Court’s decisions this term, and found several surprising results. Among these is pretty clear evidence that Justice Clarence Thomas, one of the most conservative Justices on the court, is also by far the most willing to rewrite established law and overrule judicial precedent:
Among all the Justices, it is in fact Scalia and Thomas – frequently heralded by conservatives as ideal members of the Court – who hesitate the least in invalidating legislation or (with respect to Thomas) calling for the overruling of prior precedent. They not only joined the Citizens United majority, but they would also have held unconstitutional the “honest services” statute (Skilling), the civil commitment statute (Comstock), and the ruling upholding a beach-erosion statute (Stop the Beach).
Just as fascinating is Justice Thomas’s openness to reconsidering almost every issue in the law that he views as wrongly decided. This Term, he wrote eight separate opinions suggesting the reconsideration of existing law: McDonald (incorporation); Berghuis v. Smith (fair cross-section requirement for juries); Milavetz, Gallop & Milavetz v. United States (commercial speech); Maryland v. Shatzer (custodial interrogation); Mohawk Industries v. Carpenter (interlocutory appeals); Carachuri-Rosendo v. Holder (immigration); United States v. O’Brien (jury trial rights); and Wilkins v. Gaddy (cruel and unusual punishment).
[Emphasis is mine].
We can’t say it here enough: it’s stunning that conservative Senators are still throwing around the term “judicial activism” with a straight face.