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(8,361 posts)
Fri Jul 7, 2023, 11:21 AM Jul 2023

The Most Baffling Argument a Supreme Court Justice Has Ever Made

An opinion from Justice Clarence Thomas exposed the limits of originalism.

By Adam Serwer

Midway through his concurrence with the Supreme Court’s decision to strike down affirmative action, Justice Clarence Thomas deploys one of the most absurd and baffling arguments ever put to paper by a justice.

In order to argue that the Framers of the Fourteenth Amendment did not intend to authorize racially specific efforts to alleviate inequality, Thomas finds himself forced to explain the existence of the Freedmen’s Bureau, which was reauthorized in 1866 by the same Congress that approved the Fourteenth Amendment. To square this circle, Thomas insists that the term freedmen was a “formally race-neutral category” and a “decidedly underinclusive proxy for race.”

The 1866 Freedmen’s Bureau Act then expanded upon the prior year’s law, authorizing the Bureau to care for all loyal refugees and freedmen … Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “‘freedman’” was a decidedly underinclusive proxy for race.

If “freedmen” were a “formally race-neutral category,” then the Fourteenth Amendment does not authorize race-conscious efforts to remedy racial discrimination, and affirmative action cannot be constitutional. As an originalist, Thomas is supposed to interpret the Fourteenth Amendment as it was understood at the time it was written. He is attempting to reconcile his philosophy of judicial interpretation with what the history actually says; the other originalist justices do not really try, perhaps aware of the awkwardness of doing so. The problem, though, is that Thomas’s interpretation is obviously incorrect. His efforts at reconciliation ultimately illustrate the extent to which “originalism” is merely a process of exploiting history to justify conservative policy preferences, and not a neutral philosophical framework.


( Despicable man on numerous levels. )

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The Most Baffling Argument a Supreme Court Justice Has Ever Made (Original Post) BeckyDem Jul 2023 OP
Wrong link? unblock Jul 2023 #1
Sorry about that and thank you for letting me know. BeckyDem Jul 2023 #2
Pretzel logic wins the day. 2naSalit Jul 2023 #3
Yep, especially with this guy. BeckyDem Jul 2023 #4
Thomas is carrying his honorary white man alter ego entirely too far. brush Jul 2023 #5
The pathology with Thomas is one for the books, I think. BeckyDem Jul 2023 #6
Absolutely. brush Jul 2023 #9
Frantz Fanon wrote it in 1952 Kid Berwyn Jul 2023 #10
+1 BeckyDem Jul 2023 #11
The only bright spot to Thomas' gibberish... bluesbassman Jul 2023 #7
He stands out! BeckyDem Jul 2023 #8
My disgust for Clarence Thomas is infinite In It to Win It Jul 2023 #12


(8,361 posts)
2. Sorry about that and thank you for letting me know.
Fri Jul 7, 2023, 11:30 AM
Jul 2023

I posted the other link in the Editorials section...I have too many windows open. lol


(55,162 posts)
5. Thomas is carrying his honorary white man alter ego entirely too far.
Fri Jul 7, 2023, 11:33 AM
Jul 2023

Even his fellow nutcase wife won't be able to unwind his limbs from the pretzel shapes he's gotten himself into with these ridiculous bloviations.

Come on Clarence, it's easier just ditching the honorary white mantle and just admit that originalism works for sexists, racists, anti-LGBTQ+ crusaders and others of like ilk, but not for just a hard scrabble black man who got to where he is from some merit, but more luck at being in the right place for replacement when Justice Thurgood Marshall passed (and please put the ladder you climbed up on back behind you).


(19,472 posts)
7. The only bright spot to Thomas' gibberish...
Fri Jul 7, 2023, 11:37 AM
Jul 2023

Is that some day when the dust settles, his writings will be used in Constitutional Law course as examples how NOT to interpret the document.

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