[EL] Twenty-three years down; twenty to go

[Richard Winger]

Clarence Thomas makes life miserable for groups other than just liberals.

He has done quite a job, reversing a previously unbroken string of wins for the associational rights of political parties.  Before Justice Thomas came on the scene, the two major parties had an unbroken string of wins, starting in 1972 when the Court let the Democratic national convention operate under its own rules, to the 1981 Wisconsin La Follette decision continuing that, to the 1986 Connecticut decision by Thurgood Marshall letting state parties decide for themselves whether to let independents vote in their primaries, to the 1989 unanimous decision letting state parties decide for themselves how they wish to be structured.  The culmination of this trend was in 2000, when a Justice Scalia opinion said that parties are free to restrict voting in their own primaries to their own members.

But then came the Clarence Thomas opinion in Clingman v Beaver, which suggested that the Connecticut 1986 opinion is no longer good law and saying parties do not have a right to decide to open their primaries to all voters.  And in 2008 another Justice Thomas opinion relating to Washington state said that notwithstanding the 2000 opinion, a top-two primary might be valid even if use of the party label by persons not connected with that party is permitted (Scalia and Kennedy dissented).

So, when it comes to the part of the First Amendment relating to freedom of association, as applied to political parties, Justice Thomas is not a First Amendment champion.


 
Richard Winger
415-922-9779415-922-9779
PO Box 470296, San Francisco Ca 94147


________________________________
 From: "Shockley, John" <shockley at augsburg.edu>
To: Rick Hasen <rhasen at law.uci.edu> 
Cc: "law-election at UCI.edu" <law-election at uci.edu> 
Sent: Sunday, April 6, 2014 7:55 PM
Subject: [EL] Twenty-three years down; twenty to go
 


Dear All:

One more thought about McCutcheon.   As with Citizens United and Bush v Gore, and so much else, Clarence Thomas cast the deciding vote.

I'm reminded of his quote in the New York Times, which appeared two years into his tenure on the Court:



Last year, in a conversation with two of his own law clerks, recent 
law school graduates chosen for their conservative views, Justice Thomas said he intended to remain on the Court until the year 2034.
Why 
that long? one asked. Because that would give him a 43-year term, he 
replied, according to the clerk's account, explaining, "The liberals 
made my life miserable for 43 years, and I'm going to make their lives 
miserable for 43 years."
I would only  that I think he's doing a good job.
John Shockley
Augsburg College



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