It Looks Like 2 Of The 9 Supreme Court Justices Are Willing To Let 3rd Graders Be Sent To The Coal Mines

(Photo by Staci Zaretsky)

An interesting path in the long trail of gifts and monies that changed hands from Harlan Crow to Clarence Thomas was, once you look past the illegality of it, kind of heartfelt. Justice Thomas, hoping to offer a young man a better opportunity in life, adopted his grandnephew, Mark Martin, as a son, and made sure to provide him opportunities he likely wouldn't have had otherwise. Some of those opportunities were made possible by a megadonor who maybe had a matter before the Court and definitely didn't report paying for Martin's boarding school, but that's neither here nor there. What is here is that in Thomas's concurrence to Sackett v. EPA, he shared a vision for Congressional authority that would offer children nationwide an opportunity to do things they can't do currently. Like toil without the protection of child labor laws.

Under the approach Thomas lays out in his Sackett concurrence, the federal ban on child labor is unconstitutional. So is the minimum wage, federal laws protecting the right to unionize, bans on workplace discrimination, and nearly all other regulation of the workplace. Thomas's approach endangers countless laws governing private business, from rules requiring health insurers to cover people with preexisting conditions to the ban on whites-only lunch counters. And even that is underselling just how much law would be snuffed out if Thomas's approach took hold.

Though Thomas has said similar things in the past, his opinion in Sackett is one of the most nihilistic opinions written by any federal judge in the last nine decades. This opinion is particularly notable, moreover, because it is joined by another justice, Neil Gorsuch. Gorsuch, who was appointed to the Court in 2017, had not previously revealed just how far he is willing to go in sabotaging the United States government.

You might be asking what gives -- and rightly so. Put simply, Thomas really doesn't like most of the Commerce Power jurisprudence that followed the year 1918:

Thomas argues that the Court should return to the narrow understanding of Congress's power to regulate the national economy that it followed in Hammer v. Dagenhart (1918), an infamous and long-ago-overruled decision striking down a law that prohibited goods produced by child laborers from being sold in US markets.

Then he goes even further than that. The primary thrust of his opinion is that the federal government's authority over the "channels of interstate commerce" -- roads, waterways, railroads, and other such infrastructure where people and goods can travel across state lines -- is limited only to the power to "keep them open and free from any obstruction to their navigation."

Taken seriously, this approach could gut much of the rest of the Clean Water Act, and allow a chemical company to dump countless tons of a deadly poison into the Mississippi River, so long as that poison did not prevent ships from traveling along the river.

Listen, I dislike the outcome of Wickard v. Filburn just as much as any reasonable person ought. And reasonable people ought to dislike it greatly. But a rollback that severe is a lot to take in, especially considering how decentralized the production, purchase, and use of goods has become in the states. Yes, it is true that only ~20% of the Supreme Court thinks that getting rid of a century of progress is a good thing, but that's about 20% more than what I'm comfortable with. And for anyone thinking that the hundred years of legal and moral developments since will prevent the Court from making such a drastic decision, have you read Bremerton?

Clarence Thomas's Newest Opinion Would Literally Bring Back Child Labor [Vox]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord(TM) in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.