Tell me again how loyal you are to the text of the Constitution.
IAN MILLHISERMAY 14, 2019, 9:21 AM
The greatest restraint on judges is that they are bound by a written text — or, at least, that they are supposed to be.
Members of Congress gain their legitimacy from the will of the people, so they have broad ranging authority to enact laws that, in their opinion, will serve those people. Judges, by contrast, have no democratic legitimacy and far less discretion. Their sole task, at least in theory, is to apply written law to individual cases.
Which is why Justice Clarence Thomas’ opinion for the Supreme Court in Franchise Tax Board v. Hyatt is troubling. Hyatt does not simply overrule a longstanding precedent, it does so while admitting that nothing in the text of the Constitution supports such an outcome. Loyalty to constitutional text and loyalty to written precedents are the twin pillars that stabilize our system of law. The Supreme Court just abandoned both of them.
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https://thinkprogress.org/justice-thomas-biggest-con-1a2dfc282daf/
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