Clarence Thomas welcomes new conservative era on the Supreme Court under Trump and vows to stop his fellow justices inventing 'newly discovered rights'

  • The Supreme Court justice said the court has too often granted rights to people that are not found in the Constitution
  • He cited the example of same sex marriage being made legal last year
  • He called on the audience at a dinner in Scalia's memory to carry on the judge's 'unfinished business'
  • Conservative Justice Scalia died in February this year at the age of 79 

By Dave Burke For Mailonline

Published: 03:55 EST, 18 November 2016 | Updated: 08:20 EST, 18 November 2016

Conservative judges should limit the Supreme Court's powers - inspired by the example of Antonin Scalia, one of its own justices said last night.

Justice Clarence Thomas told a dinner in memory of Scalia, who died in February, that the court has too often granted rights to people which are not found in the Constitution.

He claimed the decision last year to make same-sex marriage legal across the country, which both Scalia and Thomas dissented from, is an example of the Supreme Court overstretching.

Justice Clarence Thomas called on the audience to dedicate themselves to his late friend's 'unfinished business'

'With such unchecked judicial power, we leave it for the least accountable branch to decide what newly discovered rights should be appended to our Constitution,' Thomas told 1,700 people at a dinner in Maryland last night.

He paraphrased Lincoln's Gettysburg address to exhort the audience to 'be dedicated to the unfinished business for which Justice Scalia gave his last full measure of devotion'.

Thomas said he and his longtime friend and colleague formed an 'odd couple', as a white New Yorker and a black man from Georgia. 

'But together, we soon became our own band of brothers,' Thomas said.

Thomas' talk to the Federalist Society, along with one earlier on Thursday by Justice Samuel Alito, came at an unexpectedly upbeat moment for the conservative legal organization.

Conservative judge Antonin Scalia, who died in February, was an advocate of an originalism interpretation of the Constitution

Alito said Scalia, a hero to many of the group's members, is sorely missed on the court. 

'We are left to ask ourselves WWSD - What Would Scalia Do,' he said.

Most of its 40,000 members had resigned themselves to having Scalia's seat filled by someone more liberal, expecting that Hillary Clinton would become President.

President Barack Obama had nominated Judge Merrick Garland for the seat, but his appointment looks unlikely after 'Hurricane Trump', as society president Eugene Meyer described it.

'ASK THE NEAREST HIPPIE': THE LEGACY OF JUSTICE SCALIA 

Scalia, who died in February, was nominated to the US Supreme Court in 1986 by President Ronald Reagan and was the longest-serving justice on the current Court, as well as its first Italian-American Justice.

An advocate of an originalism interpretation of the Constitution, Scalia believed that its meaning was fixed at the time it was written and that it did not evolve and change with the times.

It was the foundation for his staunch opposition to same-sex marriage and affirmative action, his controversial comments in court and colorful dissents often making as many headlines as the decision itself.

Scalia, pictured talking to Ronald Reagan in the Oval Office in 1986, was the longest-serving justice in the current court

'Who ever thought that intimacy and spirituality (whatever that means) were freedoms?' he wrote in his dissent after same-sex marriage was legalized by the Supreme Court in June, a vote he called a 'threat to American democracy'.

'And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie,' he wrote.

In the same dissent, Scalia wrote that the Supreme Court had descended 'to the mystical aphorisms of the fortune cookie' and wrote that California didn't count as a 'genuine' Western state.

He said: 'On November 8, Hurricane Trump hit. The future can be difficult to predict.'

Now Thomas is more likely to acquire a new conservative ally. Nine state and federal judges on Trump's list of possible Supreme Court nominees are taking part in the group's conference, which runs through until tomorrow.

Thomas regaled the crowd with portions of Scalia's opinions over the years. He urged 'that these words spoken and written by Justice Scalia not be the final word written in support of originalism and constitutionalism'.

He told the audience: 'Rather, they ought to be a prologue.' 

Originalism refers to their shared belief that the words of the Constitution should be given the meaning they had when it was written.

Supreme Court Justice Clarence Thomas paid tribute to his friend at the dinner in memory of Justice Scalia

Supreme Court Justice Samuel Alito said conservative justices find themselves asking 'What Would Scalia Do?'

Alito issued his own rallying cry to conservatives earlier Thursday, describing religious freedom and gun rights as among 'constitutional fault lines,' important issues at stake in the federal courts.

'The mood has changed. Everyone is going to be thinking, "Maybe someone here is going to be filling Justice Scalia's shoes,"' said Yale Law professor Abbe Gluck.

WHO WILL BE TRUMP'S CHOICE? THE 21 ON THE PRESIDENT-ELECT'S LIST 

 In May, Trump released a list of possible Supreme Court nominees 

They are: Keith Blackwell, Charles Canady, Steven Colloton, Allison Eid, Neil Gorsuch, Raymond Gruender, Thomas Hardiman, Raymond Kethledge, Joan Larsen, Mike Lee, Thomas Lee, Edward Mansfield, Federico Moreno, William Pryor, Margaret A. Ryan, Amul Thapar, Timothy Tymkovich, David Stras, Diane Sykes, Don Willett and Robert Young 

The group's executive vice president, Leonard Leo, said: 'Anytime there's a major shift in the power of government, it's an enormous opportunity for what is probably the collection of the smartest, most talented and most publicly minded lawyers in the country to roll up their sleeves and help advance the cause of constitutional government.'

Leo met with Trump in New York on Wednesday and said afterward that Trump has yet to pare down his long list of names of Supreme Court hopefuls.

But the society's role has been criticized for the influence it holds.

Nan Aron, the president of Alliance for Justice, said it 'promotes a way of looking at the law which upholds the rights of the powerful and the wealthy'. 

Aron said it is 'regrettable that so many nominees on Trump's list are going to attend Federalist Society events'.

'Hurricane Trump' has made it more likely that Scalia's successor will be a conservative

 

 

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