Clarence Thomas Criticizes Supreme Court's Agenda in New Dissents

Supreme Court Justice Clarence Thomas has rebuked the way his colleagues applied the law in two cases, criticizing the rulings for relying too much on precedent and going beyond the Court's constitutional powers.

On Tuesday, the Court released three opinions as the 2022-2023 term winds down this week. In two of those rulings, Counterman v. Colorado and Moore v. Harper, Thomas wrote critical dissents. In the first, he reiterated his disdain for the landmark 1964 ruling in New York Times Co. v. Sullivan, and in the second he blasted six of his colleagues for deciding on a case he found to be moot.

Thomas, who has faced impeachment calls over ethics concerns, has become one of the most powerful justices on the bench in recent years. Considered the most conservative justice on the bench, he wrote 29 percent of the opinions in last year's most ideologically polarized cases, according to an analysis from FiveThirtyEight.

Citing Justice Samuel Alito as well, the analysis noted that "together, the two far-right justices wrote half of the polarized opinions, including the decision overruling abortion rights and the decision expanding gun rights."

In Counterman, the Court was asked whether the government could prosecute a defendant who makes a "true threat" without violating the person's freedom of speech.

In a 7-2 vote, the majority decided that the government must prove such a statement was made with some subjective understanding that the statement is threatening and sided with the petitioner, Billy Raymond Counterman, saying he did not understand the threatening nature of Facebook messages he sent. Thomas and Justice Amy Coney Barrett dissented, saying they would have upheld his sentence.

While Thomas joined Barrett in her dissent "in full," he also wrote his own dissent to separately "address the majority's surprising and misplaced reliance on New York Times Co. v. Sullivan."

Thomas has been outspoken about his belief that the Court should reconsider that landmark decision, which helps shield public officials from libel suits. On Tuesday, he wrote that he disagreed not only with that long-standing standard but also with the majority's decision to rely on the precedent in a "true threats" case.

"It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court's jurisprudence," he wrote.

In Moore, a case asking the justices to weigh in on the "independent state legislature theory" (ISL), Thomas argued that the case was "indisputably moot."

Alex Badas, a political scientist specializing in judicial politics, told Newsweek that when a case is moot, "there is not a live case or controversy for the Supreme Court to decide."

The Moore lawsuit was brought by GOP legislators in North Carolina after the state's Supreme Court struck down a congressional map passed by the GOP-led state Legislature for alleged gerrymandering. Although state-level developments later reversed the North Carolina court's decision, legislators were asking justices to decide whether state legislators should have more power over matters related to federal elections under the ISL doctrine.

In his dissent, Thomas said North Carolina's Supreme Court made the case moot when it reversed its own decision, and he signaled he did not want to make a substantive decision in the case. But the U.S. Supreme Court's majority disagreed with him, saying the case was not moot and rejecting ISL.

"As a corollary of that basic constitutional principle, the Court 'is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it,'" Thomas wrote. "The opinion that the Court releases today breaks that thread."

Thomas was joined in his Moore dissent by Alito and Justice Neil Gorsuch.