I have written this oped in the Daily Journal (reprinted with permission). It begins:
Justice Clarence Thomas is not afraid to go it alone at the Supreme Court. In Citizens United v. Federal Election Commission, the 2010 case striking down the law preventing business corporations from spending money from their general treasury on elections, the vote was 8-1 in favor of a disclosure law also challenged by the plaintiffs. Thomas also was alone in Doe v. Reed, a 2010 case upholding the ability of the state of Washington to make public the names of voters signing referendum petitions. Again in Shelby County v. Holder, the 2013 blockbuster case preventing Congress from enforcing a part of the Voting Rights Act which required states with a history of racial discrimination in voting to get approval before making changes in their voting rules, Thomas alone would have gone farther than the majority. While the majority struck the coverage formula of the act, leaving the preclearance provision standing in case Congress could enact a new constitutional coverage formula, Thomas was ready to strike preclearance, too. “By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision,” he wrote.
But it was somewhat of a surprise last week when Thomas wrote only for himself in the McCutcheon campaign finance case, depriving Chief Justice John Roberts of a majority opinion. McCutcheon concerned the constitutionality of a federal law which limited the total amount of money that an individual could donate to all federal candidates for office, political parties, and certain political committees in a two-year period. Since the 1976 opinion of Buckley v. Valeo, the Supreme Court has reviewed challenges to spending limits under strict scrutiny, but challenges to campaign contribution limits under a laxer “exacting scrutiny” standard.
The piece concludes:
This time in McCutcheon, Scalia and Kennedy seemed willing to go along with some faux judicial restraint. If Thomas had his way, all campaign contribution limit laws would be subject to immediate challenge and would fall rather quickly. The gradualism of the chief justice means that’s a project that takes a few more years.
The chief justice’s gradualism also means that the court takes less public heat. It is hard to explain to the public how an opinion on aggregate contribution limits affects what’s left of campaign finance law. Lower court application of McCutcheon will take a few years, and the heat from the opinion will dissipate. Then, when the court is ready, it can deliver the knockout blow. It did that in both the voting rights area, first warning of the unconstitutionality of the act and then striking it down, and in the WRTL-Citizens United sequence as to corporate spending in candidate elections.
Thomas has no interest in faux judicial restraint or a PR effort for the benefit of the court. But the other justices seem to be warming to the chief justice’s velvet glove.