pageok
pageok
pageok
Greenburg on Thomas:

In today's Wall Street Journal, Jan Crawford Greenburg has a subscribers-only op-ed aobut Justice Clarence Thomas adapted from her new book. She argues that, from the beginning, Justice Thomas has been far more independent and influential than many realize. Here are the opening grafs:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive — and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

Related Posts (on one page):

  1. Greenburg on Thomas:
  2. Miers Wanted Alito:
  3. Legalities:
QED:
In left-wing eyes, Justice Thomas is "uppity"...
1.22.2007 8:42am
JK:
There's always someone trying to claim the opposite of conventional wisdom. I'm not convinced that Thomas is an unsung heavyweight on the court.
1.22.2007 8:50am
David Krinsky (mail):
JK: One needn't be a heavyweight to think independently and refrain from moderating one's opinions.
1.22.2007 9:17am
go vols (mail):
I don't think anyone who has actually read Supreme Court opinions could argue that Thomas merely followed Scalia, at least after we had a few years to judge by. Thomas is by far the most consistent and predictable vote and opinion on the Court--which isn't to say he hasn't surprised me, as in his opinion in Virginia v. Black.

The real question, and one I pose to my students--would the Court, the nation's stability, and the Constitution be more endangered by nine justices like Thomas, or nine justices like Kennedy?
1.22.2007 9:41am
anonVCfan:
9 Thomases (assuming go vols means 9 Justices who take the same approach to compromise as Thomas, not necessarily 9 clones with the same substantive views) would stick to their principles, and we might have 9 separate opinions in some cases. If the 9 Thomases were truly principled, though, a predictable "zone of majority agreement" would probably emerge, though I wonder what it would look like.

9 Kennedys would be unpredictable, because it's hard to play the swing vote game when the other 8 are doing the same thing. It's kind of like the Price is Right where one contestant guesses X, and then the next one guesses X+1, except that at the Supreme Court the first contestant can revise his guess ad infinitum. It's also hard to curry favor with the public as an "agonizer" when the other 8 are doing the same thing. As I see it, much of Kennedy's approach depends on him being one of only one or 2 Justices who acts as he does. On a court of 9 Kennedys, 7 of them would probably leave the judiciary in frustration.

I'd prefer 9 Thomases.
1.22.2007 9:50am
anonVCfan:
9 Breyers would operate like a think tank or a legislative committee, and they'd creatively rewrite whatever they didn't like.

9 Robertses would produce consistently narrow, unanimous opinions. Each justice would write exactly 1/9 of the opinions.
1.22.2007 9:51am
Just an Observer:
Greenburg's thesis here strikes me as very old news.

True, at the time of Thomas' confirmation there may have been a popular conception that he and Scalia would perform indistinguishably on the bench. But anyone who has followed the court seriously knows that not to be true.
1.22.2007 10:02am
Eugene Volokh (www):
Just an Observer: I agree that people who have followed the court seriously likely recognize that Thomas has his own independent voice and philosophy. But most people haven't followed the court seriously, and in my experience the "popular conception" you describe still exists among many.
1.22.2007 10:07am
JonC:
Just an Obserer is right; this is old hat, particularly to anyone who's read Scott Gerber's treatment of Thomas's jurisprudence. That said, it's still more or less liberal CW that Thomas is a Scalia-clone, so maybe her article will do some good in disabusing folks of that notion.
1.22.2007 10:09am
JonC:
Prof. Volokh also makes a good point-- then again, I wonder if Greenberg isn't preaching to the choir by having this article run on the WSJ op-ed page.
1.22.2007 10:15am
Aultimer:

The real question, and one I pose to my students--would the Court, the nation's stability, and the Constitution be more endangered by nine justices like Thomas, or nine justices like Kennedy?


Shouldn't the "real" question litany also consider the litigants'/nation's liberty? Stability and a Constitution protected from "danger" are nice, but quite secondary to liberty in my view.
1.22.2007 10:49am
Steve:
Well, 9 Thomases would certainly be predictable from this day forward, which would provide stability. But you'd have a far more significant disruption of the legal order once you started reversing 200-year old precedents, so I'm not a fan of the notion.

As for 9 Kennedys, I'm not sure it would be a whole lot different from the Burger Court. A lot of ad hoc decisions, a lot of opinions without any solid grounding in precedent. It would be a mess.
1.22.2007 11:08am
godfodder (mail):
I'm sorry to say that there persists a wide-spread misconception that Justice Thomas is a kind of Scalia step-n-fetchit. That opinion is based on nothing more or less than the spin the media chooses to apply to any story that involves him. That, and the statements of prominent Democratic politicians who are happy to publically announce that Justice Thomas is a nitwit, and, what was it? "An embarassment to the court" or something like that?

The notion that Thomas is intellectually unfit to be on the Supreme Court did not become universally held by accident. It was crafted by a particularly ugly mix of Left-wing arrogance and racial stereotyping.

One of many reasons that the MSM is not so welcome in my house anymore.
1.22.2007 11:10am
Richard Aubrey (mail):
Eugene, godfodder, and jon c are absolutely correct.

The CW is that Thomas is a tool. See Talk Left, for a laugh, if his name comes up. A tool at best.

The problem is that this spin is the one the MSM have chosen.

The point that those who have followed the court closely know better is exactly the point. You have to be an expert to know you're being conned by the MSM and democrats. You'd never know, otherwise.

Does the fact that you have to be an expert with time on his or hands to know this relate to a larger issue? Just asking.
1.22.2007 11:18am
Debauched Sloth (mail):
It's hard for me to see why the "real question" is whether the country would be better off with 9 Thomases or 9 Kennedys on the Court, since it's so implausible that anyone really would really want -- let alone get -- a court with 9 committed originalists. Maybe the "real question" should be whether the Court benefits more from having a bunch of middle-of-the-roaders for whom just about anything appears to be an open question, no matter what the Constitution happens to say (or not say) about it, or from having a more disparate set of strongly-held perspectives and ideologies that help create some intellectual frisson among the justices. That seems like a pretty easy call.
1.22.2007 11:24am
David M. Nieporent (www):
Eugene, godfodder, and jon c are absolutely correct.
Ditto. We're mostly all news junkies here, and in particular legal news junkies, so we know better -- but the common perception is quite different. Of course, the CW is that he always votes with Scalia. But I've had casual news followers tell me in recent years -- without any malicious or partisan intent -- that Thomas has never written an opinion; they had heard that he doesn't speak during argument, but misremembered that.

And let's not forget Harry Reid's comments about Thomas. Partisan, to be sure -- but at the same time, the fact remains that he would never have said it about any of the other conservatives on the Court. And he wouldn't have said it about Thomas if he didn't think it were generally believable.
1.22.2007 11:37am
Loki13 (mail):
9 Thomases- unanimity &consistency for the term, starting with opinions holding that none of the Bill of Rights apply to the states (except via explicit grant through 14th), ending with a decision striking down Marbury v. Madison and making his job a little easier.

9 Kennedys- 9 separate concurring opinions, trying to reach a nuanced middle ground, and, by nuanced, I mean muddled.

9 Robertses- every opinion per curiam, kicking the case out for procedural reasons ("It is unfortunate the petitioner didn't have standing..."). Court is able to decide 2000 cases a year, all with the same result- the Supreme Court doesn't decide cases.

9 Breyers- Would conduct jurisprudence by a mixture of advanced scientific polling of the American people, a legislative subcommittee composed of the clerks, and opinions from a few Traynor cases he had kept in the attic.

9 Ginsburgs- Would find some precendent from the Hungarian Supreme Court (2002) and Israeli Supreme Court (1996) to base their decisions on.

9 Scalias- would make abhorrent conservative rulings, unless it is a criminal defendant/civil liberties/4th amendment case, then he makes principled, judicial rulings.

9 Souters- Would spend too much time raising extraneous, argumentive points during oral arguments to ever hit substantive issues.

9 Stevens- would make principled, conservative rulings. Because he's a conservative jurist. He said so.

(Alito's too new for me)
1.22.2007 12:04pm
Just an Observer:
After reading more extensive quotes from Greenburg's op-ed elsewhere (I lack a subscription), I see that she did break some ground in disclosing how Thomas has influenced other justices in internal conferences. That does alter a commonly held image of Thomas as a lone iconoclast.
1.22.2007 12:13pm
Steve:
Gee, I'm a liberal Democrat, and I happen to understand that Thomas is a bright guy who is quite a bit different from Scalia. I guess I must have skipped the mandatory brainwashing sessions, or something.
1.22.2007 12:39pm
r78:
Don't Scalia and Thomas vote the same way more than any other two justices - or close to it?

So that could be a) Thomas following the intellectual acumen of Scalia b) Scalia following the intellectual acumen of Thomas, or c) both justices arrive at the same conclusions independently.

Is there anyone in the world who thinks it is b?
1.22.2007 12:39pm
lucia (mail) (www):
Is there anyone in the world who thinks it is b?

Couldn't it be true even if no one thinks it?
1.22.2007 12:45pm
Steve:
Don't Scalia and Thomas vote the same way more than any other two justices - or close to it?

Scalia and Thomas are no more closely paired than any number of other pairs of Justices who occupy similar portions of the ideological spectrum.

If you want a good illustration of the dissimilarity in philosophies, consider one of the most notorious decisions of recent times, Hamdi v. Rumsfeld. Scalia's dissent is here; Thomas' dissent is here. I'd hate to think of this as a case where they were both counted as "voting the same way" (although they probably were), since the two opinions are polar opposites.
1.22.2007 12:52pm
JosephSlater (mail):
It may be that some liberals think of Thomas as being more similar to Scalia than he is (just like some conservatives might exaggerate the extent to which some justices want to use foreign precedent, or exhibit some confusion about Justice Ginsburg's past positions about minors, or in the case of Ann Coulter, oddly think it's clever to suggest poisoning a sitting Justice).

But getting back to the general public, how much of the linking of Scalia and Thomas can be attributed to conservative types? After all, Bush was famously on record as saying he wanted to "appoint more Justices like Scalia and Thomas." I don't recall anybody on the right or left saying in response, "gosh, what could he mean by that? I don't think they're all that similar."
1.22.2007 1:01pm
Rex:
I'm confused why the discussion so far concerns whether or not Thomas is merely a Scalia clone, because of course that's false. Based on the quote -- as a non-subscriber, I cannot read the full piece -- the more controversial assertion is that "Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years." The characterization of Thomas as persuader rather than principled sole dissenter is one I haven't seen before. What's the evidence for this?
1.22.2007 1:03pm
Loki13 (mail):
Steve,

Your example is disingenuous. Scalia is famous (see my example above) for protecting civil liberties and criminal defendants. His issue with the Hamdi case was the use of a due process test designed for routine administrative proceedings (denial of welfare benefits) for a criminal proceeding (habaeus corpus). According to Scalia (and Stevens, and the Constitution), you either charge someone with a crime,or you let them go.

Thomas, in his dissent, practiced what is called result-oriented jurisprudence. He went for the due process test but couched it only in terms of govt. interest, and basically explained that when govet. explressed an interest, there was no other interest (I know, I'm simplifying AND being unkind, but it wasn't much of an argument).

Why is Thomas's opinion particularly bad in Hamdi? Because he uses the majority opinion (which Scalia correctly eviscerates, because O'Connor pulled her due process out of civil litigation) which is a balancing test, and then explains that there is no balance here, because, well, the government sez so. In other words, I'll use the wrong balancing test, and if the govt asks me not to balance, I won't.

As for Scalia and Thomas not being in lockstep- you're right and wrong. They are more in lockstep than any other judicial pair (no stats for 2006). But I don't think it's because Thomas is Scalia's lapdog; I think (other than Bill of Rights cases) Thomas and Scalia have similar jurisprudence.
1.22.2007 1:09pm
Steve:
They are more in lockstep than any other judicial pair (no stats for 2006).

Pick a year at random and you'll be wrong about this more often than you'll be right. Also, given the number of times one or the other writes separately, focusing solely on results neglects the fact that they very often take completely different roads to reach the same result.
1.22.2007 1:53pm
Kovarsky (mail):
Loki13,

I'll look for the data, but I'm 100% I've seen statistical analysis of voting clusters, and Scalia and Thomas are not the top affiliated pair.

Also, you write:

Scalia is famous (see my example above) for protecting civil liberties and criminal defendants.

I think you mean to say that he's "famous" for protecting them in direct proceedings. He is certainly not "famous" for such rulings on collateral review.
1.22.2007 2:02pm
Loki13 (mail):
Steve,

Since Thomas has joined the court:

1. He has been on the same 'side' as Scalia more than any other justice.

2. He &Scalia win the 'most frequently paired' jurist competition most frequently. This continued to hold in 2005, with the exception of our newest jurists (Alito &Roberts). 84%* (Scalia and Roberts were at 85% but there were recusal issues).

3. Overall, the least probable event that could occur in the second Rehnquist court would be for Scalia and Thomas to disagree (see A Pattern Analysis of the Second Rehnquist U.S. Supreme Court).

But what does it mean, Basel?

Thomas has one major difference from every other current justice on the Supreme Court- a complete disregard for stare decisis. Scalia will wrestle with it. Others give it a huge degree of importance. Only Thomas would be willing to ignore it completely, and operate as if it did not bind him. Otherwise, the major difference (as I pointed out above) between Scalia and Thomas is that Scalia has a much more BofRights oriented jurisprudence, esp. 6th &4th, which makes him look almost 'liberal' in certain cases.
1.22.2007 2:12pm
Loki13 (mail):
Kovarsky,

I relied on the years 1994 - 2002, and also used tables from 2005 (to illustrate the most current year).

You can look up the math &study for 1994-2002( translated into html) at:
Study is here
1.22.2007 2:17pm
Steve:
He &Scalia win the 'most frequently paired' jurist competition most frequently. This continued to hold in 2005, with the exception of our newest jurists (Alito &Roberts). 84%* (Scalia and Roberts were at 85% but there were recusal issues).

I don't understand the methodology of your source. Akin Gump's analysis (pdf link) of the 2005 Term shows O'Connor and Souter agreeing 96% of the time. Excluding O'Connor, Roberts and Alito claim first prize with 89% agreement, just ahead of Souter and Breyer at 88%.

The report goes on to note that Scalia and Thomas only disagreed as to the judgment - an overly simplistic measure - 5% of the time, but even that is equivalent to the disagreement rates of Roberts-Scalia and Roberts-Alito.

Really, the notion that there's something unique about the agreement rates between Thomas and Scalia would be laughable if so many people didn't have a preconceived notion.
1.22.2007 2:50pm
Kovarsky (mail):
Loki13,

I could not find an affinity datum for scalia-thomas in that paper. That isn't to say it's not there, but I skimmed it twice and couldn't find it. Could you be more specific?
1.22.2007 3:00pm
Bpbatista (mail):
You mean Thomas isn't the empty suit/house n——r that the liberal media and punditry has portrayed for the past 15 years? I'm shocked! SHOCKED!!
1.22.2007 3:54pm
frankcross (mail):
Steve, 2005 was a quite unusual year for USSC decisions.
Over the time they have been on the Court, they are the two most commonly in agreement. But that, of course, doesn't mean anything about Thomas being deferential.
1.22.2007 3:57pm
Loki13 (mail):
Kovarsky,

(from page 9)

Since Table 1 informs us that
any two justices agree at least 47% of the time, joint probabilities are displayed in
complementary form, viz., the probability that two justices disagree. This is shown in
Table 2. Thus , the least probable event is that justices Scalia and Thomas disagree,
6.6%, and the next most unlikely event is that justices Ginsburg and Souter disagree,
9.6% of the time.
1.22.2007 4:03pm
Jay (mail):
Like Steve, I'm a liberal who understands the differences between Scalia and Thomas. Moreover, I *absolutely* prefer Thomas over Scalia, as Thomas is actually consistent and generally believes what he writes. Scalia is an overrated buffoon who has accomplished such intellectual "feats" as adopting two completely incompatible positions in cases released on the very same day (See his concurrence in Ring and his silent decision to join the majority in Harris from a few years back).
1.22.2007 4:12pm
Ken Kukec (mail):
I take it that Greenberg's reference to "vitriolic personal attacks" — those not pertaining to the stereotypes regarding Thomas's legal views and supposedly-subordinate role on the Court — relates to the Anita Hill allegations. I'd say that both the accused and accuser were subject to vitriol there. Only two people know which side deserved it.

As to the stereotypes that dog Thomas on the Court, there are a couple of factors at play:

First, Thomas's silence during oral argument — his failure to ask any questions when facing what Robert Bork looked forward to as an "intellectual feast" — strikes many interested observers as strange. It hints at a lack of curiousity or closed-mindedness. (Those few instances when he has spoken from the bench, as in the cross-burning case, have been closer to gut-wrenched growls than to the give-and-take of other Justices.)

Second, as JosephSlater has observed, the incessant pairing of "Scalia and Thomas" has become as much a conservative as a liberal trope.

Finally, Thomas got off on the wrong foot-in-the-mouth when Bush 41 cynically claimed he was "the most qualified" nominee available. Whatever one thinks of Thomas's jurisprudence, and whatever one's political stripe, this was just demonstrably untrue. (GHWB's subtext might as well have been: "You liberals want a black Justice? I'll give you a black Justice, and when you get him you won't ask me for one again.") It also hurt Thomas's case that he replaced Thurgood Marshall, who (whatever one thinks of his jurisprudence) was a legitimate civil rights hero.
1.22.2007 4:18pm
Syd (mail):
Going by the survey in the latest Atlantic, Thomas and Scalia agreed with each other 81% of the time in the 2004 session, which was the same as Stevens and Souter, O'Connor and Rehnquist, and Rehnquist and Kennedy, and about the same as Breyer and Souter (80%) and Rehnquist and Thomas (81%). The highest agreements were Ginsburg and Souter (86%) and Ginsburg and Breyer (85%).

Excluding O'Connor (since she was voting when the Court was giving out its unanimous decisions) and Alito (who wasn't), the highest agreements were Scalia and Thomas (89%) and Roberts and Scalia (89%). [Note though that Roberts and Alito agreed with each other 90% of the time.] The next highest agreement was Breyer and Souter (85%).

My guess is that the highest rate of agreement is Roberts and Alito followed by about equal agreement between Thomas and Scalia, Breyer and Souter, and Roberts and Scalia.
1.22.2007 4:32pm
Syd (mail):
The second paragraph there refers to the 2005 session, obviously.
1.22.2007 4:34pm
ray_g:
"I take it that Greenberg's reference to "vitriolic personal attacks" ... "— relates to the Anita Hill allegations."

No, I think it is more likely refering to statements about Thomas being a "house n----r", "Uncle Tom", and "traitor to his race", -- statements made long after the Anita Hill business was old news.
1.22.2007 4:35pm
FoolsMate:
Sorry for this slightly off-topic comment.

I've heard anecdotally that former law clerks of Thomas are shunned, employment-wise, by the most prestigious law firms and universities. It's the kind of thing that is hard to quantify, but if it were true, it would be an example of the low-esteem in which Thomas is held.

I wonder if any law professors or high-powered lawyers can comment on this?
1.22.2007 4:43pm
ray_g:
IANAL or a SCOTUS news junkie, so I don't get all the analysis of who agrees with whom what percentage of the time, and what that may mean. Lacking any secondary data, the only possible conclusion one can draw from that information is that Justice X and Justice Y agree N% of the time. So what?
1.22.2007 4:43pm
Rick Garnett (mail):
Ken Kukec suggests, above, that "Thomas's silence during oral argument — his failure to ask any questions when facing what Robert Bork looked forward to as an "intellectual feast" — strikes many interested observers as strange. It hints at a lack of curiousity or closed-mindedness."

I disagree. It is true, of course, that Justice Thomas's decision to forego what is, in most cases, self-indulgent and meandering banter with counsel is out-of-step with current Justices' practices. But, it is consistent, I think, with the norms that prevailed until relatively recently.

And, I think it would be a mistake to take his decision in this regard as signalling a lack of curiosity. His colleagues and those who know him know well that he is among the best-prepared at oral argument, and always has the record cold. I suspect he thinks that he respects counsel, rather than displays closed-mindedness, by not grandstanding.
1.22.2007 5:10pm
Steve:
Steve, 2005 was a quite unusual year for USSC decisions.
Over the time they have been on the Court, they are the two most commonly in agreement.


Here's the same Akin Gump memo (pdf link) from 2004. Yet again, the Scalia-Thomas pairing ranks behind several other pairings of Justices in terms of agreement percentages. And the memo indicates that they disagreed even more often, relative to the other Justices, during 2003.

I'm not, obviously, trying to make the case that Scalia and Thomas are complete opposites, but I frankly think they're MORE independent of one another than one would typically expect from the two judges at the rightward extreme of the Court. By comparison, there were years when Justices Brennan and Marshall agreed with each other 100%.
1.22.2007 5:15pm
Hattio (mail):
Ken Kukec,
Why assume that either Thomas or Anita Hill deserved the vitriolic personal attacks they received. It is possible for two people in a disagreement to both be partially wrong and partially right. Indeed, it seems to be the norm.
1.22.2007 5:37pm
happylee:
I wonder how Thomas's style will mesh with the Chief Justice's stated goal of a unified court.

A very good question is whether we need a unified court. Take a look at the disaster of Brown v. Bd. of Ed.
1.22.2007 5:47pm
frankcross (mail):
Steve, if you read the 2004 memo, it emphasizes how great the affinity between the two is.

Realistically, of course, voting together must be considered in the circumstances. E.g., when Thomas is the lone dissenter, which he sometimes is, he differs from Scalia, but that difference is practically pretty meaningless. Differing in a 5-4 decision, by contrast, would be enormously important.
1.22.2007 6:54pm
Byomtov (mail):
Since Thomas has joined the court:

..... the least probable event that could occur in the second Rehnquist court would be for Scalia and Thomas to disagree (see A Pattern Analysis of the Second Rehnquist U.S. Supreme Court).


Of course this is the relevant point, not where they came in during a particular year.

It is the percentage of agreement over Thomas' tenure on the court that tells us how closely he and Scalia agree. To look year by year is incorrect. So what if they are in second place every year? If the first place pair changed every year Thomas and Scalia could easily still have the highest rate overall.
1.22.2007 7:09pm
SimonD (www):
Several commenters have raised the point that it isn't really any surprise to anyone who's followed the Court that the media portrayal of Thomas is way off the mark. I think there are two obvious points to address to that view: First, this book -- and remember, this op/ed isn't freestanding, it trails and advertises the full book -- doesn't seem to be aimed at the legal profession, but at a wider audience, many of whom haven't followed the court closely. As JonC alluded to above, there is no conceivable downside to flattening the myth that Thomas is but Scalia's shadow, even if it only demolishes what many already know to be a fiction. If this book chips away at that misconception, so much the better. Second, as others noted above, the popular misconception of Thomas is essentially an invention of the MSM -- so why has it seemingly escaped attention that Jan Crawford Greenburg, youthful-yet-veteran MSM reporter, is seemingly going to great lengths to eviscerate the deception that her own employers have helped create?

Perhaps I'm being naive, but one of the things I like best about Greenburg is that I'm still not really sure where she stands (cf. Totenberg, Lithwick, Greenhouse et al, whose every piece practically drips with their opinion). At very least, she does a better job hiding her views than do many reporters. At best -- look at the way she politely hung Justice Breyer out to dry at the recent FedSoc/ACS Scalia/Breyer debate.
1.22.2007 7:10pm
Steve:
Steve, if you read the 2004 memo, it emphasizes how great the affinity between the two is.

The actual quote is:

Justices Scalia and Thomas, who have historically had among the highest degrees of affinity, disagreed only 13% of the time. This represents a difference from last Term, when Justices Scalia and Thomas agreed less often than did six other pairs of justices.


The most important words here are "among the highest." No one disputes that Scalia and Thomas agree a lot of the time. The point is that their level of agreement is completely normal for two Justices who are ideologically similar, and that you could find many other pairs who agree as often or more so. Thus, the claim that Thomas does nothing but follow Scalia's lead is fallacious.

I guess we disagree on the significance of a lone dissent. To me, it demonstrates strongly independent thought. It's like you're suggesting that because the outcome of the case isn't at issue, Scalia or Thomas might decide to dissent just for the heck of it. I don't think that's typical.
1.22.2007 7:14pm
Kovarsky (mail):
based on my straw-poll reading of the thread, there's about 8 commenters accusing liberals of short-changing thomas, and 0 commenters actually doing that.

revealing....
1.22.2007 7:36pm
Kazinski:
Kovarsky:
Did anyone specify posters to this thread, or other unamed liberals?

Here is a good example of what they were refering to.

That is revealing.
1.22.2007 7:46pm
Steve:
No, no one specified. It was all about how "liberals think this" and "such-and-such is the left-wing view," like always.
1.22.2007 7:54pm
Kazinski:
Steve:
Thats why I gave a specific example. I don't think illustrating liberal viewpoints by citing obscure DU or Kos postings is legitimate, however un-repudiated statements by the Democratic Senate Majority (then Minority) leader should be suffice for one legitimate example. Unless you are contending Reid was espousing a racist veiwpoint instead of a liberal one.
1.22.2007 8:07pm
Loki13 (mail):
Steve,

I apologize for not getting back to you re: my statistical discrepancy. Commute + family time + tracking down that statstic (I had jotted it down in my notes from and had to backtrack where it came from). But sit down, I'm about to do something very rare on this board:

I was wrong. The statistic quoted was from a survery that only measured 'Constitutionally important' cases (see THIS SURVEY. I should have noted that when making the asssertion- I apologize. By excluding certain cases, two justices can be made to appear in concordance more often they are (example- get rid of CrimPro cases and Scalia and Thomas will apear more similar). I still find the methodology used interesting, but I should not have used that statistic without going back and checking the source of that statistic.

That said, I find the methodology used in the other cited survey persuasive. For the 8 years of Rehnquist 2, Scalia and Thomas were least likely to disagree of any justices. I would posit the following statements:

1. Scalia and Thomas practice similar jurisprudence, and we should expect to find some similarity.

2. That said, the uniformity of their decisions from the time Thomas was appointed until 2002 was striking... and if you take out the criminal cases, striking is an understatement.

3. The jurisprudence of Scalia and Thomas has been diverging recently (last five years), but, if you take out the solo dissents (products of a disdain for stare decisis) are still similar, but not to the extent of Thomas's early jurisprudence.

Are these fair statements?
1.22.2007 8:08pm
Kovarsky (mail):
kazinski

That is revealing.

well, it doesn't seem particularly revealing if disavowed by the "liberals" on this thread. unless you want to argue we think what you say we think rather than what we actually think.
1.22.2007 8:09pm
Kovarsky (mail):
Kazinski,

You seem to be unable to distinguish between (1) the fact that some liberals think that about Thomas and (2) that it is a "liberal" position in the sense that most liberals feel that way.
1.22.2007 8:12pm
frankcross (mail):
Steve, you're being defensive. People on this thread generally haven't said Thomas defers to Scalia, I specifically disowned that position. They do agree a lot, and if you take the broader sample of all years, I think they are the most common.

The significance of a lone dissenter is that it reveals the cutpoint of the case. I.e., the petitioner (for example) is pushing a very conservative legal position that even Scalia (say) won't buy as the law, but Thomas will. It reveals a division at the most conservative end of the spectrum. Which is not meaningless but not so highly significant unless the Court shifted vastly to the right, to the point where Scalia or Thomas might be the median justice.
1.22.2007 8:21pm
jgshapiro (mail):
Affinity doesn't really show anything useful at the Supreme Court.

First, the cases are not fungible.

Second, if you have a similar approach to the law and start with exactly the same cases as the guy sitting next to you on the bench, odds are you are going to come to a similar conclusion for similar reasons most of the time. It does't mean either of you is following the other.
1.22.2007 8:26pm
jgshapiro (mail):
Affinity doesn't really show anything useful at the Supreme Court.

First, the cases are not fungible.

Second, if you have a similar approach to the law and start with exactly the same cases as the guy sitting next to you on the bench, odds are you are going to come to a similar conclusion for similar reasons most of the time. It does't mean either of you is following the other.
1.22.2007 8:26pm
Toby:
If one looks in parts of the atrilce that were not quoted you have examples such as:

Consider a criminal case argued during Justice Thomas's first week. It concerned a thief's effort to get out of a Louisiana mental institution and the state's desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it "may make eminent sense as a policy matter" to let the criminal out of the mental institution, nothing in the Constitution required "the states to conform to the policy preferences of federal judges."

After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.

Justice Thomas's dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the "youngest, cruelest justice," he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas's dissent, which said a prison inmate beaten by guards had several options for redress -- but not under the Eighth Amendment's prohibition of "cruel and unusual punishment."

Maybe those who cannot conceive of Thomas as inependent should instead consider that Scalia is Thomas's step-n-fetchit. With as much justification as the oposite view.
1.22.2007 8:32pm
Steve:
Unless you are contending Reid was espousing a racist veiwpoint instead of a liberal one.

Reid was taking a cheap shot at someone who is disliked by liberals. I don't think Harry Reid is intellectually qualified, in all seriousness, to make an independent judgment about who is or isn't an embarassment to the Supreme Court, nor are most members of the Senate.

Are these fair statements?

1 and 3 are fair. I'd differ with 2, just because I don't find the numbers all that striking, in comparison to other pairs of Justices in recent history. I think it's been clear for quite a while that Thomas has his own jurisprudential path.

Steve, you're being defensive. People on this thread generally haven't said Thomas defers to Scalia, I specifically disowned that position.

The problem is, I guess, I'm not sure what position you're affirmatively arguing for. I understand that we agree on the basic point.
1.22.2007 8:41pm
SimonD (www):
Kovarsky-
You seem to be unable to distinguish between (1) the fact that some liberals think that about Thomas and (2) that it is a "liberal" position in the sense that most liberals feel that way.
You're contending that most liberals feel that Justice Thomas is an asset to the court and an intellectual heavyweight, then? Isn't that what you'd have to establish in order to defend the premise that it isn't a "liberal position" that Justice Thomas is not the sharpest knife in the draw?
1.22.2007 9:13pm
Ken Kukec (mail):
ray-g:

I believe the racial epithets you mention are of a piece with the negative stereotypes and subordinate-role allegations. Greenburg led off her article referring to other "vitriolic attacks." Aside from the Hill imbroglio, I wasn't aware of any.

Rick Garnett:

Thomas's colleagues may be able to say he is well-prepared at conference; I don't know what basis they would have for saying the same about argument, absent his venturing any questions. Anyway, being well-prepared is different from being open-minded. And I only said that his silence "hinted" at a problem, especially to those outside the Court who are relying on observation rather than personal experience. (I agree, that the overall questioning from the bench is above historical norms, an increase that can probably be traced to the appointment of avid questioners like O'Connor and Scalia -- and the fading into history of the strong, silent Whizzer-White types.) Still, asking virtually no questions, ever, is bound to strike some observers as odd, a contributing factor to Thomas's inaccurate negative reputation.

Hattio:

Although there is certainly room for some misinterpretation, the confirmation testimony of Hill and Thomas was so discrepant that this cannot explain it away. Either he harrassed her or she lied. Perhaps "vitriol" isn't the proper response, but such conduct is going to give rise to strong feelings (especially with a lifetime appointment to the highest court hanging in the balance). Anyway, I'm not looking to rehash that episode. I was just wondering if that was the other "vitriolic personal attack" Greenburg was referencing.
1.22.2007 10:19pm
Lev:

Maybe those who cannot conceive of Thomas as inependent should instead consider that Scalia is Thomas's step-n-fetchit.


Since a number of people in the black community, "leaders" even, who do not post in here would never post in here and never even heard of here, believe Thomas is actually white, wouldn't that mean they should also believe Scalia is black?
1.22.2007 10:29pm
Brian G (mail) (www):
Justice Thomas' crime with the liberals has always been his failure to act in lockstep with the liberal line, like his predecessor Justice Marshall did, and all blacks are supposed to do. Read Justice Marshall's opinions sometime. There is hardly a case where the government didn't so something to the poor criminal, yet in his social policy cases there is hardly a case where the government could do. They knew from jump street that Thomas wasn't going to give them the same nonsense that Marshall did, hence the disparagement.
1.22.2007 10:48pm
Brian G (mail) (www):
Sorry for the typos above. I meant to say there was hardly a case where the government could do right in criminal cases, and hardly a case where they could do wrong in liberal social policy, in Justice Marshall's view.
1.22.2007 10:50pm
Kazinski:
Thank you Kovarsky, I wasn't aware most liberals like and resect Justice Thomas. I'm glad you enlightened me.

I, much like Steve thought that:
<blockquote>
Reid was taking a cheap shot at someone who is disliked by liberals. </blockquote> Now I will admit Reid is not the sum total of all liberal thought encompassed in one man. But he is one of the leaders of the liberal party, and the elected leader of Senators Kennedy, Biden, Leahy and Clinton, to name just a few.
1.22.2007 11:28pm
Steve:
Justice Thomas' crime with the liberals has always been his failure to act in lockstep with the liberal line, like his predecessor Justice Marshall did, and all blacks are supposed to do.

Justice Marshall didn't "act in lockstep with the liberal line." Justice Marshall SET the liberal line for those of us who were too cowardly to blaze the trail ourselves. He was the farthest thing from someone who "got in line."

It's worth noting at this point that every single racially offensive comment or stereotype in this thread has come from the conservative side.
1.23.2007 12:37am
Steve Setzer:
My CivPro professor (Tom Lee of BYU) had clerked for Justice Thomas. He noted that Justice Thomas feels very strongly that oral argument is a waste of time, and that by the time a case reaches the Supreme Court everything useful is (or should be) in the briefs.

I think if we had 9 Thomases, we would never have oral arguments except when the Court had original jurisdiction of a case.
1.23.2007 2:09am
Kazinski:
Isn't it pretty obvious that the oral arguments are a nothing more than a ceremonial way to give some face time to the lawyers and have an excuse for the big ornate building? What is it that the lawyers get? Just 1/2 an hour to present their case, including questions. That is only enough time to hurt a case, not near enough time to make it.
1.23.2007 2:52am
SimonD (www):
Steve,
Much is made of the "agreement rate" between Scalia and Thomas. What's the agreement rate between Marshall and Brennan? Not 100%, to be sure, but it's pretty high. No doubt Marshall was actually leading Brennan.
1.23.2007 8:08am
Steve:
Simon, given that I have spent this entire thread arguing that the agreement rate between Scalia and Thomas is an overblown issue, and raising the specific issue of Brennan and Marshall upthread, I really don't know what you're driving at.
1.23.2007 9:26am
TDPerkins (mail):

It's worth noting at this point that every single racially offensive comment or stereotype in this thread has come from the conservative side.


It's worth noting they are only repeating what has been said by some liberals, and repeating it in order to disagree with it.

Funny how you glossed that.

Yours, TDP, ml, msl, &pfpp
1.23.2007 10:18am
TDPerkins (mail):
What, low hanging fruit should be unpicked?

Yours, TDP, ml, msl, &pfpp
1.23.2007 10:19am
TDPerkins (mail):
I should add they are also characterizing liberals in making those statements, and seem to me to be accurate in doing so.

But that fruit's a bout a half millimeter above the first.

Yours, TDP, ml, msl, &pfpp
1.23.2007 10:28am
Colin (mail):
TDPerkins, what "liberal" was QED quoting when he said, "In left-wing eyes, Justice Thomas is 'uppity'"? Steve is right - for all the comments about what liberals think about Thomas, I haven't seen any liberal here (or elsewhere) make a racially offensive comment about him. Those comments are certainly "low hanging fruit," but only in the sense that it is very easy to write baseless slander about what someone else supposedly thinks.
1.23.2007 12:07pm
SimonD (www):
Colin - he was quoting (or alluding to) a quote from Justice Thomas, who declared his confirmation hearings treatment to be "a high-tech lynching for uppity blacks who in [any] way deem to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree."
1.23.2007 1:22pm
Colin (mail):
I understand that. It seems clear, accordingly, that he wasn't actually identifying what liberals believe. He was rather promoting some conservatives' narrow and unrealistic stereotype of what some liberals believe.
1.23.2007 1:31pm
TDPerkins (mail):
I believe I wrote two operative towards your question, Colin.
"repeating" and "characterizing" If I recall, with some ellipsis, Sen. Reid is quoted, and the "uppity" reference is certainly characterizing.

Talk about low hanging fruit.

Narrow and unrealistic, my foot.

Yours, TDP, ml, msl, &pfpp
1.23.2007 1:58pm
TDPerkins (mail):
I believe I wrote two words operative towards your question, Colin.

"Repeating" and "characterizing" If I recall, with some ellipsis, Sen. Reid is quoted, and the "uppity" reference is certainly characterizing.

Talk about low hanging fruit.

Narrow and unrealistic, my foot.

Yours, TDP, ml, msl, &pfpp
1.23.2007 1:58pm
josh:
The meme that the "MSM" has something to do with any perception about Thomas vis-a-vis Scalia is a little irresponsible here, espaically based on who actually authored this op-ed. (IE, Bpbatista: "You mean Thomas isn't the empty suit/house n——r that the liberal media and punditry has portrayed for the past 15 years? I'm shocked! SHOCKED!!")

Note that JC Greenburg was the Chicago Tribune S Ct correspondent for most likely the entire 15 years batista is complaining about. I can recall one specific piecew she wrote around 2000 or 2001 making this very point -- a court term preview. Probably available on lexis or the Trib's arvchive.

Anyway, I've never understood how one person from the "MSM" can be so interminably liberally biased, and then be deemed reliable only when that person supports a conservative position (a position I agree with, BTW. Jan was perhaps the best court correspondent in the country when she worked for the Trib and a U of C law school alum)

Could someone who thinks the "MSM" is responsible for pressing the (erroneous) notion that Thomas is Scalia's lackey (other than anything written during the Thomas confirmation or his first year or two on the bench), please provide a link or two in support?
1.23.2007 2:22pm
Colin (mail):
"Repeating" what? Where is anything "repeated?" I only see original statements purporting to represent other peoples' statements and beliefs, without any support. How is characterizing Thomas's statements characterizing the beliefs of liberals? His comments don't become original liberal thought just because you repeat or "characterize" them.

What does "TDP, ml, msl, & pfpp" mean? Do you append that to your paper signature, too? Just curious.
1.23.2007 3:29pm
TDPerkins (mail):
Where is anything "repeated?"


I believe that the sense of Senator Reid's comments at least were recommunicated, and that quite faithfully. Other statements were recharacterisations.

How is characterizing Thomas's statements characterizing the beliefs of liberals? His comments don't become original liberal thought just because you repeat or "characterize" them.


Because in the case of that particular statement by Thomas, recommunicating the statement provides an accurate view of liberals--hence doing so characterises liberals.

That is my signature for interner use, where a sig takes little time. With ink I stick to my name.

TDP are my initials--go figger that one.

molon labe
montani semper liberi
para fides paternae patria
1.23.2007 4:41pm
Colin (mail):
I think it's a reach to call Reid's comments "racially offensive," to connect back to Steve's original comment. And, again, just saying that the conservative stereotype "provides an accurate view of liberals" is silly. If you want to tell us what liberals say, then (accurately) quote liberals. Quoting liberals and ascribing entirely novel meaning to their words, or worse, quoting a conservative saying "this is what liberals think," doesn't do anything to persuade me that you have a serious or accurate understanding of what liberals think.

I don't speak Latin; would you mind translating? Also, I've noticed that if you insert two spaces after the ampersand, you can write "& pfpp" rather than "&pfpp."
1.23.2007 5:43pm
Ken Kukec (mail):
happylee:

So Brown v. Board of Eduction was a disaster? You want to go back to the Jim Crow world of Plessy -- or all the way to Dredd Scott? Since Brown was decided, there hasn't been a single Supreme Court Justice to decline to support it -- including Roberts and Alito at their confirmation hearings. Do you think Justice Thomas would disown it? (How about Loving v. Virginia?) Some irony, since without Brown, he would never be sitting on the Court. (Heck, without the chain of events Brown helped set in motion, he probable would even be able to vote.)
1.23.2007 7:01pm
happylee:
Professor Graglia does a wonderful job of explaining why Brown was bad, and I think every serious attorney should have a copy of his book.

Brown was a disaster. It made no sense and provided no rememedy to the actual litigants; instead it blathered about some communist researchers' conclusion that blacks didn't want to hang around other blacks but preferred the company of whites, and it refused to order immediate intergration but suggested that intergration should happen some time in the future.

Brown was classic case of elites taking matters into their own hands, and shortchanging pesky electoral politics and popular opinion (it did this again in its infamous abortion opinion). As a direct, unintended result, white flight in this country took off like Courtney Love on Crack. Take a drive through Detroit and say "thanks, guys."

Brown and its progeny embodied the ultimate stupidity of "solving" forced segregation by imposing forced intergration. And guess what, the results speak for themselves. The only winners in all this were school bus manufacturers.

To digress, I fear the S. Ct. will give us a pro-treehugger decision soon by allowing EPA regulation of carbon. Why? Because all the "Brandeis Briefs" filed by 'friends of the court' went on and on about the "science" of manmade global warming. Legal issues will evaporate like common sense during a hot summer treehugger rally. And like all the whitey do-gooders in Brown v. Bd of Ed, the Supreme Court in Mass v. EPA will leave the law behind to advance todays latest "manbearpig" theory.
1.23.2007 7:37pm
happylee:
1.23.2007 7:40pm
Ken Kukec (mail):
That would be Professor Graglia of "blacks and Mexican-Americans can't compete academically with whites" infamy? What a strange authority to cite in a thread about the Supreme Court's only exant African-American Justice.

How were "electoral politics" supposed to solve the segregation problem when the victims of that segregation were prohibited by law from voting? Wait for "popular opinion," I guess. Jim Crow laws had been going strong for nearly a hundred years, with no end in sight, when Brown was decided. Tough luck, huh?

If you think a drive through Detroit today is bad, you should have tried a ride through Mississipi or Alabama or Georgia in the days before Brown. You'd have found some "strange fruit" hanging from the trees there.

Kenneth Clark was a "communist"? You really do want to take us back to the 1950s ... all the way to Joe McCarthy.
1.23.2007 9:14pm
Ken Kukec (mail):
that "extant" ... fingers faster than brain.
1.23.2007 9:17pm
JosephSlater (mail):
Ken:

You anti-democratic, pro-race-mixing communist, you.

HappyLee:

I'm confused. Driving through Detroit (as I actually do with some frequency), I certainly do see continued segregation. But that's good from your perspective, right? And maybe that continuing segregation has something to do with a case that contains the name of Michigan's former governor Milliken. . . .

But you are certainly right that racial integration was an idea of "elites." Assuming by "elites" we mean "poor, working class, and sometimes middle class black people routinely and pervasively discriminated against in society who formed a movement to try to overcome discrimination."
1.24.2007 11:35am
SimonD (www):
Ken:
How were "electoral politics" supposed to solve the segregation problem when the victims of that segregation were prohibited by law from voting? Wait for "popular opinion," I guess. Jim Crow laws had been going strong for nearly a hundred years, with no end in sight, when Brown was decided. Tough luck, huh?
I agree, and a similar argument to this is also one of the arguments that I found most astonishing when several libertarians got all in a tizzy about Ann Althouse's calling them out over the Civil Rights Act. They suggested, inter alia, that the CRA was unnecessary because economic and political incentives alone would have desegregated the South. And I think a reasonable person looks at that argument and scratches their head; if that were so, why had it not already been so? If the political process at the state level was sufficient to bring a halt to state and private segregation, Brown would have been moot and CRA unnecessary. Never directly addressed was when would this process have begun, why it would have suddenly taken place sua sponte almost a century after the civil war amendments, and how long would it have taken to achieve the same success as did the CRA. "It seems obvious to me that if your political theory doesn't provide for desegregation, you need a new theory."
1.24.2007 3:35pm
David M. Nieporent (www):
I agree, and a similar argument to this is also one of the arguments that I found most astonishing when several libertarians got all in a tizzy about Ann Althouse's calling them out over the Civil Rights Act. They suggested, inter alia, that the CRA was unnecessary because economic and political incentives alone would have desegregated the South. And I think a reasonable person looks at that argument and scratches their head; if that were so, why had it not already been so?
You completely misunderstand the libertarian argument (which is not Happylee's). The argument is that economic incentives would have desegregated the South if government stayed out of it. That is, in the absence of legally-mandated Jim Crow, economics would have done the trick. Therefore, the answer to your "why hadn't it already happened?" should be obvious: because the southern governments were not libertarian.

Like many, you confuse the legal incidents of segregation with private discrimination. The CRA was about the latter, not the former. Libertarians say that if the federal government had limited itself to enforcing the 14th amendment and thus preventing governmental discrimination, the south would have desegregated.
1.24.2007 4:57pm
SimonD (www):
David,
I entirely understand both the libertarian position and the difference between governmental and private discrimination, I was just shooting for economy of language in pivoting from Brown to CRA. ;) I'm not convinced that simply removing government discrimination would have necessarily led to the collapse of private segregation - and, moreover, even if I were, that doesn't answer the questions of how long it would have taken and when it would have begun.

I'll acknowledge that there might be an argument (maybe even a good one) that CRA was not the best or the most efficient way to end private discrimination. However, the libertarian objection to CRA, it seems to me, isn't a practical, pragmatic beef with the efficiency of CRA, a concern with the details motivated by belief that it could have been more effectively written. I had thought that the purist libertarian objection to CRA, of the type that animated Althouse's antagonists, was hostility to the very idea of a federal statute forbidding private racial discrimination.

While I recognize that private discrimination and legal discrimination are separate issues, I also think those who argue against CRA understate the obvious: that the same people carrying out private discrimination were voting for the politicians who created and enforced legal discrimination. Frankly, I think the view that holds that "if the federal government had limited itself to enforcing the 14th amendment and thus preventing governmental discrimination, the south would have desegregated" would have at best doomed the south to far slower desegregation, and at worst, is utterly fanciful. If the South had wanted to desegregate, it could have done so on its own. It failed so to do, and in my view, Congress acted within both its Constitutional and moral authority to break the back of an iniquitous practice.
1.24.2007 5:44pm
Ken Kukec (mail):
David:

I take it, then, that you favor the Voting Rights Acts but not the laws prohibiting discrimination in places of public accommodation? What about minorities lacking the economic clout (because of either their small number or their poverty) to bring enough financial pressure to bear? Wouldn't economics require a "critical mass" to convince the owners of places of public accommodation to abandon their discriminatory ways? How about the businesses that have a special relationship with government -- say because they operate on public property or operate pursuant to one of a limited number of government-granted licenses -- would it be appropriate to rely solely on economics then?
1.24.2007 6:14pm
Jeremy Pierce (mail) (www):
You should be able to read the whole piece here.
1.24.2007 7:09pm