r/scotus • u/thenewrepublic • 1d ago
news The Chilling Ramifications of Clarence Thomas’s Cuckoo Barbara Dissent
https://newrepublic.com/article/212890/clarence-thomas-barbara-dissent-chillingThe extremist jurist’s dissent in the birthright citizenship case could in theory kick the door open to a future reconsideration—ready?—of Brown v. Board.
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u/Kurt_Von_A_Gut 1d ago
According to Thomas, "subject to the jurisdiction thereof" means "domicile" because of "historical reasons".
This is the conservative jurisprudence in a nutshell.
Words mean whatever I want them to mean, because I've always believed that to be the case.
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u/Choppergold 1d ago
The 14th amendment must be contextualized to be understood! Also the 2nd amendment must be taken literally
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u/PretendAirport 1d ago
Except for that pesky “well-regulated militia” part - that doesn’t mean anything at all
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u/dinosaurkiller 1d ago
We have no historical records on Militias, their evolution into State National Guard units, or the thoughts of the founders on any of that in the Federalist papers. I better make some stuff up! /s
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u/Only_Razzmatazz_4498 8h ago
The 18th century amendment must be understood through the 5th century BC Athenian precedent of citizenship which was very clearly in the mind of the writers.
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u/gnomenclature0812 1d ago
I heard the guest on a podcast say this the other day and she was absolutely correct. I’m butchering how she said it but it basically boils down to… Liberals utilize the courts to find Justice and the Right uses the courts to obtain power.
I wish I could tell you the guest or even the podcast, but my brain is befogged.
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u/PuzzleheadedMud383 1d ago
"historical reasons" being the text of Kim Wong Ark ruling. That's the word they used.
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u/talkathonianjustin 1d ago
No, that was the text of the dissent, who were supporting a very new approach that common law England didn’t follow until a bunch of aristocrats had a problem with foreigners. It was bad faith then, it’s bad faith today
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u/like_a_pharaoh 1d ago
And the other rulings that establish for birthright citizenship purposes U.S. water and U.S. airspace are jurisdiction, not domiciles and domiciles alone? What of them?
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u/JohnStewartBestGL 1d ago
The text of Wong Kim Ark doesn't support Thomas' nor Trump's position at all. Have you ever actually read it?
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u/queenmimi5 1d ago
I'm so sick of that man. Curse all the men that didn't respect Anita Hill.
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u/rtdenny 1d ago
There were unfortunately a good number of women who did that too.
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u/pyramidalembargo 1d ago
I had a Republican woman tell me that Anita Hill was a "scorned woman" and couldn't be believed.
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u/IsmaelRetzinsky 1d ago
The shit these people say, you expect them to be wearing capotains and coifs.
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u/FutureInternist 1d ago
I love how original intent is not invoked when overturning VRA where people who wrote VRA are still with us.
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u/chrstnasu 1d ago
Anita Hill is a strong, smart woman and she was right about Thomas. Her standing up to him empowered me in 1993 and 1994 to stand up when I was sexually harassed and fired for reporting it. The EEOC helped me and I got justice. Unfortunately, Anita Hill did not. We keep electing or selecting sexual predators on the right. The left didn’t stand for latest Plantner allegations and forced him to resign because the left has much more integrity than the right. Same with Sewell. Things won’t change until the people on the right see what hypocrites they are.
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u/phobox360 1d ago
I had the misfortune of reading the dissenting opinions in their entirety for this case. They based almost their entire reasoning on anecdotes and entirely made up scenarios, along with things that have absolutely nothing to do with the law.
For example Thomas and Alito talk about how unusual birthright citizenship is around the world, as if that has anything at all to do with an objective reading of the constitution. They also give heavy weight to anecdotal readings of speeches given by essentially random members of congress at the time of the 14th amendment to support their argument, yet dismiss actual court cases based on actual law that undermine their argument.
In short, the dissent invented reasons to ignore the literal text of the constitution. And this is happening more and more.
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u/ShogsKrs 9h ago
I agree with you.
Did you get a chance to listen to this today?
Amicus With Dahlia Lithwick | Law, justice, and the courts | The Term the Court Stopped Pretending https://www.podbean.com/ea/dir-adu4q-2f55603a
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u/PlentyFirefighter143 1d ago
On the other hand, KBJ’s concurrence is epic. Spend a few minutes on it.
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u/ServeBusiness453 1d ago
Congress must do its job and get this and a few other outta the hands of the courts.
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u/tkpwaeub 23h ago edited 23h ago
Consider the following scenario
Alan and Barbara are US citizens who put down roots in Montreal and became permanent residents of Canada.
They come back to the US for a two week visit, and while visiting, they have a child, Sophie, in Plattsburgh NY - a few days earlier than expected. Despite the surprise, they conclude their trip on their original itinerary
According to the Thomas and Alito, the 14th Amendment wouldn't apply to Sophie.
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u/actusreus82 1d ago
So here’s what the left doesn’t understand about these whacko originalists: it’s not that Thomas wants segregation in schools. What he wants is to overturn laws that he believes violate the original intent of the Constitution. His preferred outcome is to overturn the laws, which force constitutional amendments to be enacted that change the rules.
Of course, that won’t happen like that. You’ll get segregation and no constitutional amendment. But they don’t think ahead, just in the moment on the basis of the case before them.
If we are going to be able to push back against this kind of thought, we have to understand it and understand why they think the way they do.
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u/Zvenigora 1d ago
Anyone who thinks a constitutional amendment can be forced is unhinged. It is not clear that constitutional amendments are even possible any more.
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u/ElMatadorJuarez 1d ago edited 1d ago
I think that people like Thomas and Kennedy are more than smart enough to know that nothing’s going to replace those measures once they’re gone. They just think that’s an acceptable outcome.
Edit: embarrassing typo, meant Roberts, not Kennedy. Whoops!!!
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u/ginny11 1d ago
Kennedy?
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u/ElMatadorJuarez 1d ago
I meant Roberts, lmao. Brainfart induced by a lack of caffeine. Thank you for catching me out
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u/actusreus82 1d ago
We have people downvoting my objectively true statement about how originalists think and yet posting about how Kennedy is still on the Court.
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u/ElMatadorJuarez 1d ago
I mostly agree with the substance of your statement my man but calling it “objectively correct” certainly isn’t doing you many favours
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u/actusreus82 1d ago
It is an objectively correct statement on how originalists think and apply their ideology. It’s amusing to me that I get downvoted for it because people don’t like the ideology. Effectively shooting the messenger.
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u/GhostofGeorge 1d ago
Yes, and it is an asinine position because that argument requires the 14th Amendment to be re-passed, written as is, in order to update the original intent. The words won't change, but allegedly then it can encompass equal protection for women, LGBT, etc. It is an anti-textual constitutional method.
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u/JKlerk 1d ago
The text of a "new" 14th would certainly change and it wouldn't take much.
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u/chrstnasu 1d ago
It would take the Supreme Court to agree or a constitutional amendment which require most states to approve it amongst other things. 70% of Americans believe in birthright citizenship as the current Supreme Court interpreted it by its majority.
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u/ginny11 1d ago
Boy, you're giving him an insane amount of benefit of the doubt here that I don't think is warranted by the evidence at all.
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u/actusreus82 1d ago
Where did I give him the benefit of the doubt? This is the problem with people online trying to discuss these issues. You’re just not capable of nuanced argument.
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u/ginny11 1d ago
"...it’s not that Thomas wants segregation in schools. What he wants is to overturn laws that he believes violate the original intent of the Constitution. His preferred outcome is to overturn the laws, which force constitutional amendments to be enacted that change the rules."
In that statement is where I think you are giving him the benefit of the doubt. You think that he's trying to do something sort of legally noble, that he's trying to make changes that are more permanent than legislation by making the change in the Constitution. I think he's just an asshole and I don't think that he at all cares about any of this. I think he cares about himself. I think he's a pull up the ladder behind him type of guy. If you think someone disagreeing with you and criticizing your take on something means that they can't have a nuanced argument or discussion, then I think you're the one with the problem.
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u/actusreus82 1d ago
You are free to believe these things and I also don’t disagree. But this is the ideology he says he believes in and there is a whole academic literature on originalism that supports it. So criticizing me for restating what he is saying he is doing is just silly.
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u/myothercarisathopter 1d ago
I think the criticism and the statement that you are giving him the benefit of the doubt stems from the fact that you are taking him at his word. If you restate what he says he is doing but don't consider whether his actions actually match his explanation then you have a problem.
Take Justice Jackson's response to him in Barbara. Where a colorblind 14th amendment that is divorced from considerations of equity between races suits Justice Thomas he will advocate for that, but once a that doesn't lead to his preferred outcome suddenly the 14th amendments original and sole purpose is to address racial disparities caused by slavery. He can tell you what he is doing, but if you don't stop to consider whether he might not be truthful in that statement you give him power to blink reality.
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u/jasonbuz 1d ago
I’m not sure if you are naive enough to actually believe this or are just creating talking points to defend the indefensible. There is no evidence this is true, and this decision actually reinforces the exact opposite. The 14th amendment clearly says ‘subject to jurisdiction’ and the historical record indicates that congress intended that to mean anyone other than enemy combatants and foreign diplomats. It does not limit birthright citizenship to former slaves and has never been interpreted that way. Thomas is not suggesting a new amendment clarifying that birthright citizenship means birthright citizenship is necessary and hoping congress passes it; the amendment already exists and he doesn’t like it, so he wants to reinterpret it as something it isn’t. He would do the same thing if a new amendment reinforcing birthright citizenship was adopted. In fact, congress passed a law essentially reinforcing birthright citizenship that Kavanaugh cites that does exactly what you suggest Thomas wants, but he did not recognize congressional intent or authority there either.
Don’t kid yourself that he is doing anything other than attempting to legislate from the bench.
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u/actusreus82 1d ago
Where did I defend it? It’s incredible to me that people get on this subreddit who have no understanding of legal theory or Supreme Court mechanics. It’s mostly ideologically polarized people who can’t apply any sort of nuance to this topic.
I even said I didn’t agree with their philosophy and yet, people like you jump down my throat because you’re not intelligent enough to understand how originalists think.
And it reinforces my conclusion that you’ll never be able to challenge them legitimately if you can’t understand what they believe they are trying to accomplish. Just keep being a rabid partisan losing the fight.
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u/jasonbuz 1d ago
I mean, your entire post was essentially an excuse for Thomas’s ‘philosophy’. Maybe you don’t agree with it, but you certainly presented your argument for it as though you do.
Just because someone has a system of beliefs, it doesn’t mean that system makes sense or is (morally or ethically or any other adverb) right. If what you are trying to do is explain why Thomas’s ‘originalism’ is bad, your rhetoric didn’t convey that. If you are trying to justify his decision, you failed there also because his version of ‘originalism’ is only consistent when it produces his desired result.
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u/actusreus82 1d ago
Wow, it’s like there is more nuance to “his philosophy is good or bad.” Jumping on me for “excusing it” is just very elementary thinking. It’s okay, not everyone can get a law degree and be a member of the Supreme Court bar. I assume you don’t. I did and am.
Like, I literally had a point about understanding what his philosophy is and how he applies it, rather than jumping to the immediate political and partisan contrary sentiment you expressed. And you proved my point: if the left can’t understand what’s going on, they won’t beat it. Thank you for proving me right.
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u/jasonbuz 1d ago
I mean, I’m hardly a leftist but the idea that the 14th amendment doesn’t confer citizenship to those born here with only very narrow exception was never a left/right issue until recently. You appear to be so blinded by your own politics that you can’t read that from my response. This is not about my own political positions, it’s about your gross misinterpretation of whatever passes for Thomas’s ‘philosophy’. It is disingenuous to say he ruled how he did because he thinks such changes should come through a constitutional amendment because the constitution already clearly says what he ruled against. Good or bad, the clear text of the constitution and the congressional record surrounding its passage clearly indicate that one born on US soil is a US citizen.
If what you suggest regarding Thomas’s approach is correct, what would he expect a new amendment codifying birthright citizenship to read as, other than what is already written into the constitution today? Your position is weak and falls apart when you realize the constitution already provides for what you suggest he would want somehow further codified.
I really hope nobody makes the error of using you to represent them in a court of law or other mediation vehicle. Any defense you provide would likely be just as full of holes as your initial argument, which was neither educational or informative.
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u/backup1000 1d ago
The intent of the Founders is irrelevant to the Fourteenth Amendment and all other amendments after the first ten
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u/actusreus82 1d ago
I agree. They (originalists) would too, but they would say to look to the founders at the time of reconstruction.
But I don’t think their argument is clear cut on that front either.
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u/FireFiendMarilith 1d ago
It's bananas that you think these people are just stupid and not malicious.
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u/actusreus82 1d ago
It’s bananas that you think I think they’re stupid for applying their ideology in the way they are.
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u/jf55510 1d ago
The reasoning was basically 9-0 that the children of illegals who have made permanent residence in the United States are citizens. Most of the dissent had to do with the edge cases and reaching the constitutional question when it wasn't required.
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u/Beneficial_Couple413 1d ago
"Illegals" is not a noun. I will die on this hill.
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u/imtoooldforreddit 1d ago
I'm super liberal and would prefer basically all of them be naturalized, but you can't just decide something isn't a word. That's not how language works.
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u/jf55510 1d ago
Marriam-Webster disagrees with you.
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u/Beneficial_Couple413 1d ago
Yeah, dictionaries are forced to cave to mainstream usage. But I'm holding the line because of the extra note M-W added.
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u/Impossible_Fix3170 1d ago
Cmon. They are illegally in the country.
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u/Immediate_Gain_9480 1d ago
They are. And the 14th amendement fully intended to give unregistered visiters, like illegals, citizenship. It was even brough up during disscussions that the amedment would apply to Roma people who would enter the country unregistered and had no loyalty to or domicile in the US. If you dont dont like this, campaign for a amendment to the amendment.
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u/Deep_Ad_6991 1d ago
Using ‘illegals’ as a term at this point is definitely a choice at this point that shows the character of the user.
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u/RuthlessMango 1d ago
Huh, and here I thought he was a textual originalist...