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Lithwick on Thomas:
In a Slate piece on John Roberts, Dahlia Lithwick contrasts her vision of Roberts with her vision of Justice Clarence Thomas:
  The Clarence Thomases of this world — men unafraid of tearing down centuries of constitutional scaffolding in order to impose their own theories of constitutional construction — are far scarier to me. Those are the guys who probably did barf off the clock towers in college; guys with the hubris and drive to change the world without going through the confirmation process first. . . . Thomas is happiest when he's provoking outrage.
  It is true that Justice Thomas has expressed a willingness to overrule a number of cases that he sees as inconsistent with originalism. In an opinion piece, Lithwick is certainly free to characterize this as "tearing down . . . constitutional scaffolding in order to impose . . .theories of constitutional construction."

  But is there really a case that Justice Thomas is "happiest when he's provoking outrage"? Or that he is motivated by a "drive to change the world"? Am I missing something, or is Lithwick just making this up for dramatic effect?
Steve:
Orin, I think it's obvious that the business about when Thomas is "happiest" was not meant to be taken literally. Nor do I even understand what barfing off the clock tower has to do with anything. The more interesting part of the quote, which you didn't emphasize, was the charge that Thomas is "unafraid of tearing down centuries of constitutional scaffolding."

As you know, what sets Justices Scalia and Thomas most markedly apart from their brethren is not their conservatism, it is their unique view of stare decisis. While other Justices have consistently reaffirmed the importance of deferring to precedent (although, obviously, judges will differ on the application of the doctrine to specific cases), only Scalia and Thomas subscribe to the view that a precedent may be overruled any time a subsequent Court deems it to have been "wrongly decided."

I will resist the urge to psychoanalyze Justice Thomas, whose judicial acumen is often unfairly maligned. But it surely does indicate a certain degree of self-confidence to suggest that no deference whatsoever is warranted when it comes to precedent. It is not just that Scalia and Thomas disagree with certain prior decisions of the Court - surely everyone in America does the same - but that they assign no weight at all to the idea of upholding precedent for precedent's sake. Contrast this view with that of Chief Justice Rehnquist, who recently voted to uphold the Miranda decision notwithstanding his clear disagreement with the result.

It is clearly true that Scalia and Thomas take a unique position when it comes to rewriting constitutional precedent, although it is less clear whether Ms. Lithwick's psychological characterizations should be taken seriously. Judge Roberts' views on stare decisis will surely be an interesting topic for his confirmation hearing.
8.16.2005 7:32pm
Perseus (mail):
Justices like Thomas are interested in "tearing down centuries of constitutional scaffolding in order to impose their own theories of constitutional construction..." Two centuries would take us back to 1805, so Lithwick seems to think that Justice Thomas wants to overturn every major Supreme Court decision after Marbury v. Madison (1803). It would be more accurate to say decades (when liberals began imposing their theories of constitutional construction), but Dahlia is apparently a drama queen.
8.16.2005 7:34pm
Shelby (mail):
Steve,

I confess I'm not a constitutional-law scholar, but it appears to me you're overstating your case when you say Scalia and Thomas both "suggest that no deference whatsoever is warranted when it comes to precedent" and "assign no weight at all to the idea of upholding precedent for precedent's sake".

I think a principled argument could be made that this is the proper normative approach (though I don't think I'd be persuaded by it). However, I'm not aware of any statements or cases indicating that Thomas gives no weight to precedent, and he's widely considered less precedent-oriented than Scalia.

My impression has been that Thomas and (to a modest degree) Scalia would give less weight to precedent than others, but it's a long leap from there to NO weight.
8.16.2005 7:44pm
WB:
The odd thing is that, from the title of the post, I assumed that Lithwick's piece was about Clarence Thomas. Then I read it, and that was the only line.

It's a common error, I think--being somewhat careful and precise with reference to the main topic of what you're writing about, but painting in broad strokes and being reckless about collateral stuff.

Lithwick's focal point was that John Roberts has been almost obsessively careful and prescient his whole life as if thinking about how each of his actions would be viewed by the public decades later. Her opinion of this is that, while it seems strange at first, it is reassuring in a way, to the extent that it shows that Roberts is not likely to be reckless as a judge.

Then, as a point of contrast, she throws in the idea that this makes him better than Scalia and Thomas who, in her general estimation have been less careful and more reckless as judges.

However, "less careful" and "more reckless" are boring statements, and it's much more fun to evoke images of defiant vomiting.

Excusable or not, that's what I think she's doing. If you want to focus on the Scalia/Thomas comments, I would take more issue with what she says about Scalia. I think he has a deeper commitment to stare decisis than Thomas. To say that neither of them defers to precedent at all is an exaggeration of Thomas's jurisprudence, but more of a flat-out lie about Scalias.

But, as I said (or rambled), that's not really her point.
8.16.2005 7:51pm
WB:
So, to answer Orin's questions directly, I don't think you're missing something. Lithwick seems to be making this up for dramatic effect, and to have no qualms about doing so because her point is that she thinks Roberts will be a cautious judge with an above-average level of respect for precedent.
8.16.2005 7:54pm
Robert Lyman (mail):
Because Earl Warren and his intellectual descendants would never want to overturn precedent. And Scalia and Thomas were in the vanguard to overturn Bowers.

Perseus is right: decades of precedent (which itself overturned a century or so before that) at most.
8.16.2005 8:13pm
Steve:
Shelby: Scalia's oft-quoted statement is that "Thomas doesn't believe in stare decisis, period." Scalia has personally adhered to stare decisis in some cases, but I am not aware of any statements where he actually claims that it takes more to overturn precedent than a belief that the prior Court was wrong. I do think there is a clear distinction between Scalia's philosophy and that of the remaining Justices, although you are probably correct that he does not go as far as Thomas.

Perseus: In Thomas' concurring opinion in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), he indicated a willingness to reconsider Calder v. Bull, a 1798 decision which held that the Ex Post Facto Clause only applies in the criminal context.
8.16.2005 8:22pm
Shelby (mail):
Is it so exceptionable to say "In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny"?

He's not saying precedent is a nullity, just that he's not yet persuaded a particular case reached the right conclusion. He might even overrule it -- but he is not saying Calder was wrong, and he's not saying that, on balance, he would ignore precedent. I agree there's some there there, but I still think you're overreading it.
8.16.2005 8:28pm
Steve:
Shelby, you are confusing the two points at issue. The Calder v. Bull reference was in response to the erroneous contention that surely Thomas would never consider overturning anything older than a few decades.
8.16.2005 8:32pm
Bryan DB:
Steve, I think Scalia would say it takes more than the Court being "wrong" to overturn precedent, though the rest of the quote you cite doesn't say what that "more" is:

Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

As to whether there is "a case that Justice Thomas is "happiest when he's provoking outrage"? Or that he is motivated by a "drive to change the world"?
I think there is a case to be made. Taking them in reverse order, I think it's clear that someone who gives no value to precedent could reasonably be argued to have a "drive to change the world." Not valuing precedent would seem inherently to lead to change.
And given that not valuing precedent could lead to outrage on the part of some (if not many ) laypeople and lawyers, it's probably fair to say that Thomas provokes outrage. Whether that brings Thomas joy, I don't know.
8.16.2005 8:37pm
OrinKerr:
Steve writes, in his second comment: "Scalia's oft-quoted statement is that 'Thomas doesn't believe in stare decisis, period.'"

To borrow from what Steve says in the first comment, I think it's obvious that the business about Thomas not believing in stare decsisis period was not meant to be taken literally.
8.16.2005 8:43pm
Steve:
Fair enough!
8.16.2005 8:52pm
Craig Oren (mail):
It seems obvious from the posting and comments that conservatives are almost as humor-challenged as liberals.
8.16.2005 8:53pm
DSC (mail):
Perseus

I believe that Thomas has sought to strike down several decisions older than decades. Calder v. Bull and The Salughterhouse decisions are just a couple.
8.16.2005 8:56pm
Perseus (mail):
Steve (and others):

I never contended that "surely Thomas would never consider overturning anything older than a few decades." I said it would be more accurate--not completely accurate--to say decades rather than centuries because Thomas is most intent on "tearing down" the "constitutional scaffolding" created during the past 50 years or so, which is why Lithwick predictably cites Roe, not Calder.
8.16.2005 9:48pm
Steve:
Well, that's true. Actually, what you said is that for Lithwick to be correct, Thomas would have to want to overturn every decision since Marbury v. Madison, which I think was a bit overstated.

If we are going to start overturning century-old precedent, I respectfully suggest that we should start with Nix v. Hedden, 149 U.S. 304 (1893), in which the Court erroneously held that tomatoes are vegetables.
8.16.2005 10:28pm
Stuart Buck (mail):
Dahlia Lithwick making something up for dramatic effect? Surely not.
8.16.2005 11:08pm
Robert Schwartz (mail):
Lithwick is simply unhinged. The fact that she will so blithely trash Clarence Thomas only shows that liberal opposition to racism is a tactic. Imagine if George Will wrote something like that about a liberal black justice.

Furthermore, when did she develop so much reverence for precedent. I don't recall her howl of outrage when Lawrence overturned precedent, or when Roper gave immunity to adolescent hitmen.

As near as I can tell Lithwick and her ilk only care for precedent when they are winning. I say spare me. SCOTUS dumped any idea of precedent or law in the trash a generation ago. It is all about politics now. The liberals lost the election and now they will lose a SCOTUS seat. It means no more than that.
8.16.2005 11:52pm
Challenge:
And overturning the Slaughterhouse cases would be radical? I take that as one sensible way to bring some coherence and respectability to much of the Court's Fourteenth Amendment jurisprudence.
8.16.2005 11:57pm
Joe Socher (mail):
Coherence and rationality in 14th A. law?! now that is a radical idea.
8.17.2005 2:15am
Craig C. (mail):
One case that stands out for me is Thomas's plurality opinion in United States v. Patane, 542 U.S. 630 (2004) holding that physical fruits obtained from a defendant's un-Mirandized statements to police are admissible. I can't help but wonder if Kennedy and O'Connor were originally willing to sign on to the full opinion at conference, but then the way Thomas wrote the opinion scared them off and caused them to only concur in the judgment.

However the final line-up of justices came about, I think Patane shows that Thomas was happier with a plurality opinion that addresses a fundamental issue about whether the detective's behavior violated the Miranda rule itself rather than a narrower majority opinion that inches things more slowly in the direction he wants but doesn't make so earth-shattering a pronouncement. (Although, the fact that Miranda doesn't require exclusion of physical fruits is pretty earth-shattering itself.)
8.17.2005 2:54am
Phil (mail):
What is respect for precedent?
In Hubbell Thomas said that he thought a subsequent SCOTUS, in Fisher, had incorrectly narrowed 5th Amdt protections and that the would be willing to consider the broader protection possibly available under Boyd ("None of the parties in this case has asked us to depart from Fisher, but in light of the historical evidence that the Self-Incrimination Clause may have a broader reach than Fisher holds, I remain open to a reconsideration of that decision and its progeny in a proper case")
Similarly, if Calder v. Bull erroneously natrrowed the protections provided by the ex post facto clause, I am not sure that it shows a lack of respect for stare decisis simpliciter to reconsider Calder.
If the Supreme Court now refers to tomatoes as fruits, I am unsure that stare decisis suffers much detriment, though I may be wrong
If a case truly was "wrongly decided when decided" what else is there to do?
8.17.2005 3:41am
Perseus (mail):
"Thomas's plurality opinion in United States v. Patane, 542 U.S. 630 (2004) holding that physical fruits obtained from a defendant's un-Mirandized statements to police are admissible." So in light of "Nix v. Hedden, 149 U.S. 304 (1893), in which the Court erroneously held that tomatoes are vegetables," are we to conclude that tomatoes are not admissible as fruits in un-Mirandized statements?
8.17.2005 5:46am
Phil (mail):
Perseus

I do not know, but for the creative there must be a law review note in there somewhere
8.17.2005 6:19am
WHerndon (mail):
Debate about the sanctity of stare decisis are hard for me to take seriously anymore, even though I consider myself someone who has reverence for precedence, even with some cases that I think were wrongly decided (perhaps Griswold and certainly Roe).

Clearly, the post-1937 New Deal court had little reverence for precedence. They overturned much of the Lochner-era decisions. Nor did the later Warren court show much regard for the court's prior handiwork. And did Bill Brennan EVER support a past decision with which he strenuously disagreed?

Everyone here knows this. When I hear lawyers talk of the sanctity of precedent, it's an obvious attempt to try to lock in largely liberal gains of post-New Deal jurisprudence. Call it, as Cass Sunstein does, judicial minimalism. (meaning: minimal conservative damage until liberals or moderates again rise ascendant on the court).

Naturally, conservatives see some branches that need to be pruned off. If they truly believe certain decisions were horribly wrong, they should get out their chainsaws, just as their liberal predecessors did.

What's to hold them back? The public, my dear. Go too far, and conservatives could invite a backlash, just as liberals invited one in the Warren era. By now, certain things are ingrained in the public imagination. Most Americans actually do think the Constitution explicitly protects privacy. Try telling them it doesn't. Even now, most conservative judges have said in congressional hearings that there is at least a generalized right to privacy. Therein lies the power of the public.

In any case, Lithwick, smart though she is, can also be quite thoughtless. She likes to throw off these carelessly worded zingers occasionally, but they do her no credit. Perhaps she ought to read Mark Tushnet's new book on the Rehnquist court. There's a serious liberal review of Thomas' work.

Still, she's probably right that Thomas is eager to overturn decisions he considers wrong, even ones that are decades old. (Thank goodness time didn't dissuade the Warren Court from issuing Brown). Scalia, however, is not quite so bold. And Roberts, I suspect, will fall somewhere between Scalia and Souter in regard to precedent.

Just don't tell that to Pat Leahy. Roberts is a "radical" advocate of "policies that are deeply tinged with the ideology of the far right wing."
8.17.2005 10:27am
Ted (mail) (www):
Why does anyone take anything Dahlia Lithwick writes seriously? She's good at mildly humorous snarky observations of justices and appellate attorneys or talking about which legal figures she'd like to hug. But her legal analysis is at the level of a not-especially-stand-out petulant 2L. This is someone who wrote a New York Times op-ed wondering how Sandra Day O'Connor could be so unsympathetic to her gender as to vote against the constitutionality of the Violence Against Women Act.
8.17.2005 10:51am
Steph (mail):
I have a question. Since justices take an oath to uphold the constitution, can they in good consience follow stare decisis. It is the text they are sworn to uphold not the opinions of their predicessors.
8.17.2005 11:30am
AppSocRes (mail):
I remember citing a web site during some work I was doing for the Congressional Research Service, that provided something like 100 instances when the Supreme Court essentially reversed its previous position on legal and constitutional issues, Plessy v. Ferguson and Brown v. Board of Ed. being one of the more significant instances. This is a good thing. Stare Decesis is a guiding principle, not an absolute rule. If it were the latter, only revolution could remove the sclerosis that past bad decisions by the Supreme Court might impose on the people. It took the Civil War to rid us of Dred Scott. A simple disregard for precedent was sufficient to eliminate the injustices of Plessy v. Ferguson. A future disregard may make abortion once again an unimportant side issue in local, state, and national politics. Neither past nor present Justices are gods: They do make mistakes in judgement. Experience can suggest that what seemed like a reasonable finding at one time was actually not. Circumstances can change radically enbough that a precedent does more harm than good.
8.17.2005 11:39am
Sparky:
This is a case of pure narcissism -- if somebody does something to which I react with outrage, he or she must have acted with the intent of outraging me. Or to put it another way, it's all about me.
8.17.2005 12:06pm
Matt Barr (mail) (www):
I'm happiest when I'm provoking outrage, too. Remember that the difference between "wanting to change the world" and "wanting to fix things" is the commentator's own worldview. In that respect Lithwick is probably right, and Thomas wants to "change the world," e.g. by reconsidering commerce clause jurisprudence, and Roe, and so on. Lithwick is alarmed, many others aren't, life goes on. Frankly, I htink Lithwick is happiest when provoking outrage.

The "respect for precedent" thing as applied to conservative judges and not more liberal ones is not useful. It wasn't Thomas and Scalia signing on to Roper and Atkins, for example. Certainly, you can make blowing up precedent seem like following it if you talk about "evolving standards" and emanating penumbras and such, but it is what it is.
8.17.2005 12:27pm
SimonD (mail):
Steve's suggestion (at top) that the Chief's adherence to stare decisis is indicated by his vote in Dickerson is somewhat tenuous. My interpretation was always that Rehnquist wants to win, and if he can't win, he'll settle for a draw. If he'd voted with Scalia and Thomas, he would have lost. If he voted with the majority, he could write the opinion, and carefully limit the scope of that ruling.


I think that Dahlia's characterization of stare decisis as "the notion that precedent is not overturned cavalierly" is more than a little too cute. No-one, not even Justice Thomas (who, as Scalia notes, "doesn't believe in stare decisis, period"), thinks precedent should just be overturned on a whim - it should be overturned in constitutional cases when precedent is leading to a result which is longer justifiable against the written constitution.

Precedent as a principle is fine; the law should be predictable. As far as stare decisis serves that goal it is all good, but elevating stare decisis above what the constitution says is impermissable. What it cannot be, however, is the common-law Judge reborn (see Scalia, A Matter of Interpretation); a wrong decision - and by "wrong", obviously I mean, "cannot be reconciled against the constitution" - should be, at worst, ignored, and at best, overturned.
8.17.2005 12:39pm
Lee Kane (mail):
The C. Thomas of Lith.'s column is, of course, a figment of her imagination--at most traced from some indistinct shadow cast into her imagination from a distant reality. Is it any surprise? It is, rather, true to form: Choose a political label for oneself, look for those who have a different label, attached one's personal dislikes to said possessors of said opposite political label and attribute nasty motive--presto, instant bogey man. Journalism 101.
8.19.2005 1:14am
Anonymous:
Stare Decesis is a guiding principle, not an absolute rule. If it were the latter, only revolution could remove the sclerosis that past bad decisions by the Supreme Court might impose on the people.

Well, not only revolution. The other option is extremely creative interpretation. This is the traditional method of Talmudic scholars and also of the British House of Lords, by whom, if I'm not mistaken, precedents are NEVER overturned. You might say they "believe in Stare Decisis, period."
8.20.2005 5:51am