Will media start calling Justice Thomas out-of-the-mainstream?

Blog ››› ››› ADAM SHAH

At Media Matters, we have noted media coverage of conservative attacks against Supreme Court nominee Sonia Sotomayor for supposedly being outside the mainstream or an activist, attacks that are often based on misrepresentations of Sotomayor's record. Rather than simply parroting these attacks, the public would be better served if the media reported that one justice on the Supreme Court has repeatedly demonstrated himself to be out of the Court's mainstream: Justice Clarence Thomas. Indeed, perhaps the media should be asking how progressive a new nominee has to be in order to counterbalance Thomas.

In recent days, Thomas has disagreed with all eight of his colleagues on two extremely important issues. On Monday, Justice Thomas asserted that Section 5 of the Voting Rights Act is unconstitutional. Section 5 requires that certain jurisdictions -- including several southern states -- with a history of racially discriminatory voting practices seek permission from the Justice Department or the courts before changing their voting laws. The Justice Department or the court has to ensure that the contemplated change in voting practices does not have a discriminatory purpose or effect. No other justice besides Thomas was willing to take the step of declaring the law -- which was reauthorized nearly unanimously by Congress in 2006 -- unconstitutional. But Justice Thomas was.

And that was just Justice Thomas' warm-up for the week. Today, the court dealt with the constitutionality of a school administrator's strip search of Savana Redding, a 13-year-old girl, after another girl accused her of giving out prescription-strength ibuprofen and over-the-counter Naproxen. Eight justices held that the strip search, which did not turn up any drugs, violated the Constitution's ban on "unreasonable searches."

But not Justice Thomas. In fact, Justice Thomas called the other justices' actions a "deep intrusion into the administration of public schools." He also listed examples of people who had concealed drugs in their underpants (almost all of them adults) as vindication for his view that the strip search was not unreasonable, saying that "Redding would not have been the first person to conceal pills in her undergarments." He added: "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school." Recall that Redding did not actually have "pills in her undergarments."

This is nothing new for Thomas. For instance, in 2004, eight justices held that Yaser Hamdi, an American citizen held in a brig in South Carolina after being declared an enemy combatant by President Bush, had the right to file a habeas corpus petition in federal court to challenge his detention. Thomas dissented, again without any colleagues joining him. Thomas asserted: "This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision." Thus, Thomas believed that in time of war the president had the power to lock up American citizens without any "second-guess[ing]."

Rather than just cover the back and forth between Democrats and Republicans on the Sotomayor nomination, the media have a real chance to educate the American public about the justices and what effect a new justice might have on the court. The media can begin this process by noting how out of step Thomas is with his other colleagues.

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