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Clarence Thomas’s Legal Time Machine Zooms to 1789
Clarence Thomas’s Legal Time Machine Zooms to 1789

Bloomberg; June 17, 2013

Don’t let the U.S. Supreme Court’s very contemporary cases on gene patenting and same-sex marriage fool you: At least one justice is still living in the 18th century and doesn’t care who knows it.

Justice Clarence Thomas followed his astonishingly consistent originalism in Alleyne v. U.S. today, joined by the court’s four liberals -- and none of its conservatives -- in holding that a fact that increases a defendant’s mandatory minimum sentence must be found true by the jury, not by the judge alone.

Just a few minutes earlier, however, it was announced that Thomas had provided the deciding vote in Salinas v. Texas, arguing that a defendant’s exercising the right to remain silent can be used by the prosecutor to argue to the jury that silence is evidence of guilt.

From a policy perspective, these two opinions, one liberal and one conservative, make no sense. The only way to reconcile them is to enter the mind of Justice Thomas, in which the court’s job is to bring us back to the nation’s founding and damn the consequences.

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