Thomas criticizes a previous high court opinion-his own
By Mark Sherman
Associated Press
WASHINGTON (AP) - Justice Clarence Thomas has made no secret of his dislike of past Supreme Court decisions written by other justices, including seminal opinions about abortion rights, press freedoms and a defendant's right to a lawyer.
On Monday, the 71-year-old justice turned inward, focusing his criticism on himself - a court opinion he wrote in 2005 defending the power of federal administrative agencies.
In the case, known as Brand X, the court sided with the Federal Communications Commission's decision not to regulate broadband cable providers, rejecting a federal appeals court ruling that would have required regulation.
"Although I authored Brand X, 'it is never too late to surrender former views to a better considered position,''' Thomas wrote, borrowing language from Justice Robert Jackson in 1950. Thomas wrote a dissenting opinion Monday when the court declined to take on a case asking it to overrule the Brand X decision.
Thomas' evolving views about federal agencies is part of a growing conservative movement to rein in the powers of the bureaucracy. Advocates for regulation of business practices across a wide swath of the American economy worry that if conservatives succeed in rolling back court decisions like Brand X, it could be much harder to sustain governmental regulations.
The leading Supreme Court decision in this area is Chevron v. NRDC, a 1984 ruling that says when Congress leaves the details of laws vague, courts should rely on federal agencies to fill in the gaps. The opinion by Justice John Paul Stevens has been cited more than 15,000 times.
Thomas is among several conservative justices who have questioned the decision's validity. "Chevron compels judges to abdicate the judicial power without constitutional sanction," he wrote on Monday.
"Brand X takes on the constitutional deficiencies of Chevron and exacerbates them," he added.
In the past year alone, Thomas has advocated overruling Roe v. Wade, the court's landmark abortion rights decision; New York Times v. Sullivan, its defense of press freedom; and Gideon v. Wainwright, guaranteeing a lawyer to indigent defendants.
Court won't hear case brought by author Jon Krakauer
WASHINGTON (AP) - The educational records of a star University of Montana quarterback accused of rape will remain confidential after the U.S. Supreme Court declined to get involved in the case brought by author Jon Krakauer.
Krakauer had made a public records request for the documents in 2014 while writing the book "Missoula: Rape and the Justice System in a College Town." But Montana officials denied him access to the documents related to former University of Montana quarterback Jordan Johnson, who was accused of rape by an acquaintance in 2012.
Krakauer, the author of "Into the Wild" and "Into Thin Air," took officials to court over their denial. A lower court initially ordered Krakauer be given access to the records but the Montana Supreme Court disagreed.
Johnson was ultimately acquitted in court but a university disciplinary process had recommended expelling him. Johnson appealed his expulsion to State Commissioner of Higher Education Clayton Christian. It wasn't clear what action Christian took but Johnson remained a student. Krakauer wanted documents related to Christian's intervention.
Krakauer on Monday criticized the federal law that the university system had used to withhold the records, the Family Education Rights and Privacy Act. University officials had argued the school could lose education funding if it violated the act by releasing confidential student information, while the author said schools use the law to deny the public release of information that might blemish the schools' brand.
"I intend to pivot my efforts toward persuading Congress to get rid of FERPA and replace it with a bill that doesn't enable schools to cover up sexual assaults by their star athletes," Krakauer told The Associated Press in an email.
As is typical, the Supreme Court didn't comment Monday in turning away the case.
Published: Wed, Feb 26, 2020
