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| Credit: @realDonaldTrump |
Connect the dots!
Here are a few additional recent cases that exhibit an unmistakable pattern:
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In his dissenting opinion in Glossip--joined by Justice Alito--Thomas protested that the Supreme Court had no authority to review the state court conviction and death sentence. He explained that here, Oklahoma's highest court in criminal appeals--i.e., the Court of Criminal Appeals--had upheld the conviction and death sentence on the basis of "adequate and independent" state grounds, not federal law. Once a state court did that, the Supreme Court had no jurisdiction, according to Thomas.
But the majority of the Court had a different view. Federal constitutional due process, guaranteed against the states through the 14th Amendment, was violated in this case. The state prosecutor had knowingly presented false evidence to the jury--i.e., the lies of the actual killer. That violated the constitutional guarantee of due process, because it deprived the death inmate of a fair trial.
The majority opinion of Justice Sotomayor was joined by the other two Democratic appointees, Justices Kagan and Jackson, as well as by two Republican appointees, Chief Justice Roberts and Justice Kavanaugh. Justice Barrett agreed with the majority regarding the due process merits of the case, but she wrote separately to argue that the state court should be allowed to reconsider the facts. (Justice Gorsuch did not participate.)
Thomas not only disagreed that the Court had power to review the decision below, but he additionally disagreed that there was any due process violation. He insisted that the false testimony made no difference in the trial.
Another death penalty case from Oklahoma:
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Justice Thomas's dissent in Andrew v. White--this time joined by Justice Gorsuch--was based on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, federal courts may not grant habeas corpus relief to a state criminal defendant unless the state court decision in the case violated clearly established federal law. According to Thomas, it is not clear under the Supreme Court's precedents that the admission of prejudicial evidence, even if it renders a trial fundamentally unfair, violates federal constitutional due process. Thomas reasoned that, while there might be some "general rule" about prejudicial evidence and fair trials, there is no "specific legal rule" that justifies habeas relief.
Beyond that, Thomas argued, as he did in Glossip discussed above, that the prejudicial evidence--here, irrelevant, inflammatory information about the defendant's sex life--made no difference. He agreed with the Oklahoma court that the evidence of guilt that was relevant was so overwhelming, that any error in admitting the prejudicial evidence was harmless.
However, the 7-2 majority, in a per curiam opinion, held that clearly established federal law had indeed been violated. As they explained, the Supreme Court had already held in several previous decisions that a "prosecutor's prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair." Moreover, addressing Justice Thomas's argument about a general versus specific rule, the majority added that “certain principles are fundamental enough" that they can "apply with obvious clarity to the specific conduct in question.” According to the majority, that was the case here: the due process protection against a fundamentally unfair trial does not require any "interpretation or extension of this Court’s cases"--that principle is clear.
Another AEDPA case involving prejudicial evidence:
In his dissenting opinion in Chiaverini, Justice Thomas--joined by Justice Alito--repeated an argument he had made in an earlier case, that a claim of malicious prosecution was not a 4th Amendment claim. Therefore, according to Thomas, it could not be the basis for a §1983 lawsuit that a constitutional right had been violated. A malicious prosecution, Thomas insisted, bore little resemblance to an unreasonable seizure, which is what the 4th Amendment prohibits.
An 8-1 majority in Gonzalez v. Trevino reaffirmed its rule regarding retaliatory-arrest. That is, an unconstitutional arrest can occur even when there is probable cause. If others who had engaged in the very same misconduct were not arrested, then the arrest of an individual to retaliate for that person's protected expressive activities would violate the 1st Amendment. That was precisely the basis for the §1983 lawsuit here.
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In Davis v. Smith, Justice Thomas--joined by Justice Alito--argued in dissent that the Court should have granted certiorari, should have summarily reversed the federal appeals court's grant of habeas corpus, and should have reinstated the defendant's convictions. According to Thomas, the 6th Circuit Court of Appeals had disregarded the strict limits that AEDPA places on federal courts to invalidate state court decisions. If any "fairminded jurist" could conclude that the state court complied with Supreme Court precedents, then a federal court may not disturb the state court decision.
Here, the state's appellate court had found that the victim's identification of the defendant as her attacker was reliable. That court had rejected claims that the identification procedure in question was unduly suggestive. According to Thomas, the 6th Circuit should have accorded "substantial deference" to the state court's conclusion and affirmed its ruling, just as AEDPA requires. Instead, the 6th Circuit criticized the state court for merely citing Supreme Court precedent without providing an explanation of how it was applied. But Thomas insisted that "a state court need not explain its reasoning at all;" a federal court should focus only on the state court's "bottom-line decision.”
The 7-2 majority had a different view. It did not believe that the 6th Circuit's decision needed to be reversed and the convictions reinstated. Indeed, despite Justice Thomas's arguments to the contrary, there were pretty obvious reasons to leave the 6th Circuit's decision alone. Even as Thomas had recounted the facts in his dissent, the way in which the defendant was identified seemed to irreversibly taint the state prosecution's case and to constitute reversible error.
As Thomas acknowledged, the victim had been visited by a police officer while she was recovering from her injuries. The officer told her, “I think I found out who did this to you.” The officer then showed the victim a photo of the defendant. He told the victim that the defendant's DNA was found in her home, and that the defendant is “very violent” and “hoping you’re dead.” At some point, the victim responded that she either dreamt or remembered that the defendant had attacked her.
The 6th Circuit found that the police conduct in getting the victim to identify the defendant as her assailant was irreparably suggestive. The Supreme Court's seven-Justice majority--the three liberals and four of the conservatives--chose not to disturb that conclusion. Thomas disagreed and insisted that the 6th Circuit had to be reversed and the state court convictions upheld.
Two of Justice Thomas's dissents came in other criminal law-related cases, where municipal law enforcement was sued for constitutional violations:
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Thomas elaborated that a baseless prosecution is the essential ingredient of the tort of malicious prosecution. A baseless detention is something entirely different. For that reason, regardless of any baseless arrest or baseless pretrial detention alleged in this case, the claim of malicious prosecution does not fit a claim of a 4th Amendment violation. (Justice Gorsuch wrote a very brief, separate dissenting opinion, similarly arguing that the common law tort of malicious prosecution was not the same as a 4th Amendment violation.)
That formalistic argument of Thomas (and Gorsuch) was readily dismissed by the 6-3 majority. Speaking through Justice Kagan, the majority explained that a §1983 malicious prosecution lawsuit, such as the one brought in this case, is in fact based on a 4th Amendment unreasonable seizure. It is based on an arrest and detention unsupported by probable cause to believe a crime had been committed. Stated otherwise, the “gravamen” of such a §1983 wrongful prosecution claim is “the wrongful initiation of charges without probable cause” that results in an illegal arrest.
The specific issue in this appeal was actually something different. It was whether the §1983 lawsuit, based on an arrest and detention on unfounded charges, was defeated if there was a charge that was supported by probable cause. The majority answered no; the cause of action still survives. As illustrated by the majority: the 4th Amendment is violated "if an invalid charge—say, one fabricated by police officers—causes a [pre-trial] detention either to start or to continue." Those were the facts alleged here.
That allegation was not disputed by Thomas. (Or by Gorsuch.) Instead, Thomas dissented to complain that the §1983 cause of action, as upheld by the majority, "mixed...legal frameworks.
Thomas dissented on similar formalistic "legal frameworks" grounds in another §1983 case:
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All of the Justices except Thomas joined the Court's per curiam opinion. (Justices Alito, Kavanaugh, and Jackson also wrote separately to elaborate.)
In dissent, Thomas argued that any probable cause to arrest, no matter if others were charged or not, should defeat a retaliatory claim. Similar to his formalistic protest in Chiaverini discussed above, Thomas insisted that a constitutional claim for retaliatory arrest must be based on the same essential element as its common law analogues of false imprisonment, malicious arrest, and malicious prosecution. They all require the lack of any probable cause. Moreover, according to Thomas, an improper retaliatory motive makes no difference. For Thomas, the only legitimate focus is the manner in which the process is executed, not the underlying purpose for executing it.
Thomas's usual ally, Justice Alito, authored a concurring opinion further clarifying the reasons for the majority's ruling. He repeated what the Court had explained in an earlier decision: officials "might exploit the arrest power as a means of suppressing disfavored speech." Thomas wanted that precedent overturned in order to render the motive for an arrest irrelevant.
Connecting the dots: In each of the criminal appeals, Thomas sided with the prosecution, even when it knowingly presented false evidence, even when it presented highly inflammatory and irrelevant evidence, and even when it relied on a victim's identification of the defendant that was irreparably tainted by police suggestion. In the §1983 cases, he sided against individuals whose constitutional rights were violated, whether the individual was arrested and detained on baseless charges, or whether the individual was charged with an otherwise unenforced charge in retaliation for disfavored political speech.
In all of the cases discussed in this and the preceding installment in this series, Justice Thomas dissented against majorities that included not only the liberal Democratic appointees on the Court, but customary conservative Republican allies as well. And what did he consistently disagree with? In all of these dissents, he disagreed with rulings intended to protect against gun violence or against constitutional violations. Firearms in the hands of domestic abusers, assault weapons, untraceable "ghost guns," fundamentally unfair criminal trials, hopelessly tainted identifications, and highly inflammatory irrelevant evidence--Thomas took issue with decisions upholding protection against each of these.
To be sure, Thomas did articulate legal arguments in support of his positions in all of his dissents. And unless one is ideologically blind, it must be acknowledged that the majority could legalistically have decided these cases either way. Whether wisdom and equity would strongly favor one decision over the other is a separate, if perhaps the most critical, consideration in these legally-close cases.
With that in mind, the specific point here is that, whatever the wisdom and equity of the majority in each of the cases discussed, Thomas's sympathies lay more with unabridged gun rights than with protection against gun violence, and more with unimpeded prosecution of crime than with the constitutional rights of the accused. And Thomas's record evinces such sympathies to be much more unwavering than those of other political conservatives on the Court.
