Wednesday, September 11, 2002

Andy writes:

Justice Thomas' influence on the Court has been mostly in his concurrences and dissents, as in the voucher decision (where he observed that the 14th Amendment should not used to restrict liberty).

But Justice Thomas has also written 92 opinions for the Court. I compiled the list.

I wrote an article about Justice Thomas that has not been published. Maybe I should take Julie's suggestion to write a book instead, on Thomas' work.

Several in the list are very important decisions, but I hadn't realized that Thomas wrote them. Two of the most important entailed disagreements with Scalia: Christensen, where Thomas said agency opinion lacks force of law, and Bajakajian, where Thomas prohibited the feds from seizing hundreds of thousands of dollars based on a mere currency reporting violation.

John writes:

Thanks for the list. Too bad it doesn't include links so I can click through to read them. However, 81 of the opinions have links here, along with 53 concurrences, 60 dissents, and 13 other opinions. The missing opinions are numbers 1, 2, 3, 4, 6, 43, 67, 89, 90, 91, 92.

I agree that where Thomas deviates from Scalia, Thomas is usually right. Another example is McIntyre v. Ohio Elections Commission (1995), where Thomas showed that laws against anonymous political speech are inconsistent with the First Amendment.

I agree. Here is a Thomas fan site.

Andy writes:

I agree too. One possible explanation is that Scalia is more pro-institution, pro-government than Thomas. Scalia is an Italian Catholic, while Thomas obviously is not.

Libertarians can be preferable to conservatives as judges. Rehnquist sometimes renders horrible opinions because of his pro-government bias.

Another possible reason Thomas is better than Scalia is that Thomas picks mostly conservative clerks, while Scalia and Rehnquist do not.

Liberals generally aren't interested in debating the merits of issues. They do better by keeping people away from the substance.

Andy writes:

One only has to go back to June 17, 2002 to find an awful, pro-govt opinion by Rehnquist. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 122 S. Ct. 2080.

Rehnquist dissented from an 8-1 decision that invalidated a permit requirement for door-to-door solicitation. I can't imagine having to get a town permit to knock on a few doors, something I've personally done.

Rehnquist's main reason for backing the regulation? Newspaper clippings about the murder of the two Dartmouth college professors in their home:

"A recent double murder in Hanover, New Hampshire, a town of approximately 7,500 that would appear tranquil to most Americans but would probably seem like a bustling town of Dartmouth College students to Stratton residents, illustrates these dangers. Two teenagers murdered a married couple of Dartmouth College professors, Half and Susanne Zantop, in the Zantop's home. Investigators have concluded, based on the confession of one of the teenagers, that the teenagers went door-to-door intent on stealing access numbers to bank debit cards and then killing their owners. See Dartmouth Professors Called Random Targets, Washington Post, Feb. 20, 2002, p. A2. Their modus operandi was to tell residents that they were conducting an environmental survey for school. They canvassed a few homes where no one answered. At another, the resident did not allow them in to conduct the "survey." They were allowed into the Zantop home. After conducting the phony environmental survey, they stabb! ed the Zantops to death. See ibid."

So two profs fell for some Columbine-killer types who were posing as environmentalists. The profs invited them into their home and spent time with them. This is statistically insignificant and, at any rate, the solution for those worried about this is not to let enviro-wacko strangers into their house!

Yes, it is pretty silly to think that the city granting permits to knock on doors is a good solution to random killers tricking residents into opening their doors.

John writes:

I disagree that libertarians can be preferable to conservatives as judges. Libertarians invariably misrepresent the issue as government versus no-government. In reality, as the following case illustrates, the issue is national (federal) government versus local (state) government.

But the question is what gives the federal government the power to overrule local government on such a purely local matter as door to door solicitation?

If people in a local community (like Ladue, Mo.) want solicitors to register at the local police station before knocking on doors, what's wrong with that?

It is no answer to say that murders by door-to-door solicitors are "statistically insignificant." How many such horrible murders must a community endure before enacting reasonable preventive measures?

I could understand if some town wanted to ban commercial solicitations altogether. But I don't see how this law would reduce any crime. Rehnquist says that maybe someone would have checked whether the murderers had a permit. The murderers were claiming to be doing an environmental survey for the school. It seems just as likely, and more useful, if someone had checked with the school to see whether the survey was legitimate.

John writes:

Roger is entitled to his opinion that a local rule requiring door to door solicitors to register with the police is not "likely" to reduce crime, and that alternative measures would be more "useful."

He may be right, but others disagree.

The question is who has the final say? A local city council that hears from actual citizens, or a federal judge sitting in his ivory tower?

Libertarians say that letting the local city council decide such questions is somehow "pro-government." They say the principles of limited government dictate letting the federal judge decide.

That's nonsense; the judge is just as much government as the council.

So what would you do? Reverse that long line of opinions that say that Jehovah's Witnesses can knock on doors? Would you apply an intermediate scrutiny test?

The permit system just doesn't make any sense to me. The city wasn't doing any background test or authenticity test on the canvassers. I've had door-to-door salesmen come claiming to have some sort of verifiable credential that they are authentic, bonded, above board, or whatever. That is a lot more useful than just city hall keeping some names in a book. It sounds like the city just wanted to find a way to harass people who knock on doors.

Andy writes:

John wrote re: anti-solicitation rule: "The question is who has the final say? A local city council that hears from actual citizens, or a federal judge sitting in his ivory tower?"

The only thing a judge can do is uphold or invalidate the regulation. The local city council and police retain dozens of more effective options for increasing safety in the neighborhood, if that's their goal, such as warning citizens against letting teenage male strangers into their home. Roger's right that the Dartmouth couple could have checked with the school more effectively than the police station.

Our preference for local over federal government is just one consideration. Lots of local regulations, such as property regulations, are offensive to conservative principles. Yes, I do want the courts to invalidate liberal laws. I want them to invalidate the Mickey Mouse copyright extension, for example.

It's a myth that conservatives support a "right to be left alone," as Grover Norquist trumpets. Ladue residents probably do not like being intellectually challenged by people they disagree with. Well, that's an essential part of a free society. It's the basis of the free speech clause, and the basis of free enterprise. Ladue can no more require door-to-door salesmen to register than it can require its gas station attendants or supermarket shoppers to register.

Liza points out that Ladue, and many other cities, require businesses to register. Religions don't have to.

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