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My Take on -- And My Frustration With -- Jeffrey Toobin's "The Nine":
I just finished reading Jeffrey Toobin's new book about the Supreme Court. Like Ed Whelan, and to some extent, Eugene, I found myself rather frustrated by it. In this post I wanted to explain why.

  First some background. Books purporting to offer an "inside" picture of the Supreme Court generally mix and match three different types of reporting: first, inside reports from clerks and/or Justices willing to speak with the author (aka "the good stuff"); second, the public record of cases, arguments, opinions; and third, the author's characterization of events and efforts to fill in gaps that allow the author to weave a good narrative.

  On the whole, I thought Toobin's book had some but not lots of "the good stuff," the inside scoop from Justices and clerks. The most important contribution to the book is probably its substantial material on how the world looks from the perspective of Justices O'Connor and Breyer, both presumably sources for the book. (In case you're wondering, the gist of it is that both of them envision/ed their job as finding workable and sensible solutions to practical problems and avoiding things that seem extreme.) For Supreme Court geeks, there are some interesting tidbits here and there; some I was familiar with, and some were new.

  At the same time, I found myself fustrated by Toobin's overall narrative and tone. Toobin sees the Supreme Court as all politics, and his politics are obviously pretty liberal. As a result, the book follows a simplistic and sometimes caricatured political narrative. The liberal Justices tend to be portrayed quite favorably as wise and able heroes. The conservative Justices and conservative legal ideas generally tend to be seen as scary, hypocritical, and/or out of touch.

  Toobin's fascination with the seemingly nonexistent "Constitution in Exile" movement is particularly telling. VC readers will know this movement either doesn't exist or consists of three dudes meeting for dinner once in a while. But Toobin seems to think this "movement" is central to conservative legal thought. He mentions it by name 6 or 7 times, and appears to see it as an important part of the dynamic at the Supreme Court. For example, Toobin writes that Justice Souter "moved left" after 2000 because he "had a visceral horror of such conservative undertakings as the Constitution in Exile." (p245) In discussing how little was known of President Bush's legal views, Toobin writes: "As for a more detailed philosophy, like whether Bush supported the Constitution in Exile — and a return to a 1930s conception of the role of the federal government — no one really knew." (p260). Toobin uses this technique to make conservatives seem scary and hypocritical: he writes that although the jurisprudence of traditional "conservatives like Potter Stewart" (?) embraced judicial restraint and deference to other branches, "the new generation of conservatives . . . did not believe in judicial restraint, and they represented a new kind of judicial activism themselves." (p14) Subtle, eh?

  
frankcross (mail):
Just as a matter of fact, Justice Brennan's opinions cite precedent much more frequently than Justice Thomas's opinions. Ginsburg and Breyer, though, are down at Thomas's very low levels.
9.24.2007 10:33pm
OrinKerr:
Frank,

What does it mean for a justice to "cite precedent"-- is that the number of citations to opinions per case?
9.24.2007 10:41pm
MikeC&F (mail):
Good take. A question for the liberals who might read this: If the only thing we care about is the result of the case, why haven't the liberal elite attacked the liberal Justices for their votes in Gonzales v. Raich? The end result of that case, you'll remember was that a deathy sick woman will be denied potentially life-saving medication - unless she's willing to break the law?

Isn't that a pretty messed up thing to do?

Also, the end result of any pro-criminal defendant criminal procedural is denying a crime victim justice. Or, at the very least, to free a factually guilty person. Why are we to ignore the end result in those cases because of the "higher principles" at stake?

If we're going to look only at results, shouldn't we look at the results given to us by the liberal Justices, too?
9.24.2007 10:46pm
frankcross (mail):
Yes, that's just a count of citations per case. A pretty crude measure, but it's hard to design a better one that doesn't have bias.
9.24.2007 10:49pm
Stuart Buck (mail) (www):
Why is that relevant, Mr. Cross? The number of times a particular Justice cites precedent indicates practically nothing one way or another about whether that Justice has a "reverence" for precedent. There are all sorts of reasons to cite precedents other than "reverence," you know -- and particularly relevant here would be the urge to distinguish Cases 1 through 10 (or to explain how your decision is really more consistent with them) when you're overruling Case 11 in that line of precedent.
9.24.2007 10:52pm
wm13:
What's interesting to me is not the Supreme Court--there are so many books written all of which together don't tell you much you couldn't learn just by reading the opinions--but Toobin. Here is guy who has both good law school credentials (i.e., strong analytic capability) and a novelist's way with detail and character (which is usually misleading when applied to real people, but never mind). This is an unusual combination of attributes, but it doesn't lead to a position of either high prestige (since being a writer is less prestigious than being a law professor) or high income (since being a writer is less remunerative than being a law firm partner) or high influence (since popular books on the Supreme Court have no long-term influence). So it's interesting that someone would spend his life doing what Toobin does. Maybe he's having fun, even without prestige, money or influence.
9.24.2007 11:15pm
Stuart Buck (mail) (www):
A pretty crude measure, but it's hard to design a better one that doesn't have bias.

This statement seems very odd to me. You refer to a "better measure," as if a sheer citation count counts as a "measure" of a Justice's "reverence" for precedent in the first place. Is this a defensible assumption? Some judges may, for example, share their law clerks' nervousness at asserting anything without a string cite to back it up, which strikes me as the only reason why some opinions have 6 citations to support the claim that a legal question is reviewed de novo. Other judges simply are long-winded -- I fail to see why Breyer (who personally prefers a barebones style that avoids footnotes) therefore has less respect for precedent than the long-winded Souter). And if I might be cynical for a moment, some judges may over-cite cases because they're being disingenuous -- i.e., if you have a perfectly good case on point, that one case will suffice, but if you want leave the impression that a dubious proposition has widespread support, string-cite 8 or 10 cases that are marginally relevant.

More importantly, I think you're confusing the concept of bias with human interpretation. Human interpretation may involve bias; but that doesn't mean that if you rid a measure of human interpretatio, you've gotten rid of all bias. Any objective measure might still systematically over- or under-estimate the thing that you're trying to measure. That's bias.
9.24.2007 11:15pm
loki13 (mail):
Stuart Buck,

I believe frankcross explained it was an imperfect metric. If you wish to criticize, please offer a better one (with results). Otherwise, your complaint is similar to that oft-lamented one heard on ballfields- "But my batting average doesn't take into account how hard I've been hitting them lately- I've just been hitting them right into their gloves."

While I have no metrics of my own (and cannot add credence for those of frankcross) I know my own opinion from reading cases is that J. Thomas* has less respect for stare decisis when he believe it conflicts with his interpretation of texturalism or original expected application. I find this worrisome (in the sense that stare decisis embodies a reliance value of scores or hundreds of years of judicial brainpower), but if you believe we've been on the wrong track since Marbury, well, maybe not so much.

*I put Brennan in a different category. Not saying I agree with his jurisprudence, but I believe that 'creating new rights' (or upholding the higher law of the Constitution, depending on your view) to be a different kind of 'wrong' than J. Thomas does. Apples and oranges... and both tasty!
9.24.2007 11:15pm
Reg (mail):
"Justice Brennan's opinions cite precedent much more frequently than Justice Thomas's opinions."

Is this based on a scientific study? I haven't noticed this.
9.24.2007 11:20pm
Reg (mail):
"Thomas* has less respect for stare decisis when he believe it conflicts with his interpretation of texturalism or original expected application."

Thomas has no respect for precedent that contradicts a textual interpretation of the Constitution. This is a perfectly defensible position: a constitutional convention has not ratified the opinions of the Supreme Court, and they should not stand when they contradict the text of the Constitution. An FBI agent can't rewrite the First Amendment any more than the Court should be able to. Thomas would strike those opinions that cannot be supported by the text of the Constitution alone. Of course, there are many reasonable disagreements over the meaning of the text, and those probably would stand.

In statutory interpretation, precedent is binding for Thomas.
9.24.2007 11:27pm
OrinKerr:
"Justice Brennan's opinions cite precedent much more frequently than Justice Thomas's opinions."

I would be interested in knowing how many precedents were cited in the Brennan era as compared today (rather than Justice by Justice). Reading over old cases, I often find a lot of string cites: a court would state uncontroversial holding X and then string-cite 5 cases that had held it before. That is rare today, I gather because in a Westlaw and WWW era you can just jump from case to case online and don't need a list all in one place.
9.24.2007 11:29pm
MikeC&F (mail):
So it's interesting that someone would spend his life doing what Toobin does.

Yeah, who wants to make a nice living working at a really cool job? The fool!
9.24.2007 11:30pm
Guest101:

Toobin uses this technique to make conservatives seem scary and hypocritical: he writes that although the jurisprudence of traditional "conservatives like Potter Stewart" (?) embraced judicial restraint and deference to other branches, "the new generation of conservatives . . . did not believe in judicial restraint, and they represented a new kind of judicial activism themselves."

I wonder if the reference to Stewart as the embodiment of the principled conservative suggests that Justice Stevens was perhaps also a source? Stevens made some statements very much along these lines in last weekend's NYT Magazine piece.
9.24.2007 11:32pm
Stuart Buck (mail) (www):
It's intellectually indefensible to suggest that you can't criticize something unless you have a better solution. What if the thing that one is criticizing has no better solution in the first place?
9.24.2007 11:35pm
Sasha Volokh (mail) (www):
I'd add that it's interesting that Toobin calls Thomas's attitude toward precedent a "cavalier" "dismiss[al]." As a commenter noted above, Thomas's attitude toward precedent is that it can't trump whatever you think is actually commanded by the Constitution -- because the Constitution (however you choose to interpret it) is law, not previous pronouncements of the Supreme Court. This a principled refusal to perpetuate errors, and a principled insistence on correcting them instead. One can argue that this doesn't give enough weight to the public's reliance interests or something to that effect, but it's certainly not a cavalier dismissal.
9.24.2007 11:42pm
Pin Head (mail):
"Thomas* has less respect for stare decisis when he believe it conflicts with his interpretation of texturalism or original expected application."

That is the problem with the "living constitution".

Easy come, easy go.
9.24.2007 11:45pm
frankcross (mail):
Ok, it's my finding, not yet published. Orin, citations actually have gone up a good bit. This appears to be explained in significant part by additional clerk support for the justices. Citations in the Warren Court were very low from some justices, especially Black and Douglas.

Stuart Buck, I never suggested it was a measure of reverence for precedent. I suspect it relates somewhat to respect for precedent but also to other factors such as legitimation. Justices tend to cite more cases when they feel a greater need to legitimize a decision under the law. Such as when they overturn an existing precedent. I think citations are used to strengthen an opinion and to strengthen the cases they cite.

You are right, of course, on the value of human interpretation. I think both quantitative and qualitative analyses should be used together to inform ourselves. Human interpretation risks a certain sort of bias (maybe unconscious) but also allows for a much finer-grained assessment.
9.24.2007 11:51pm
loki13 (mail):
Sasha et al.

But in some cases, it is a cavalier dismissal. To use an example, if a reserve member of the air force is called up to Iraq, and sues because Congress has no power to create a Air Force, I believe we would all be (somewhat) outraged if a court full of Thomases found the Air Force unconstitutional.

Now, the counterarguments to that are twofold:
1. The outrage is such that there would be a quick amendment (which would still take time).
2. It is possible to be a texturalist and still support the Air Force.

I think 2 is more interesting. While it is possible, it is also true to be a texuralist and believe Congress has no power to create an Air Force. More importantly, the danger lies when one person believes that they, and not the judges viewing and interpreting the Constitution for the past two hundred years, have the 'right' answer. There are certain reliance values in having settled law, and there are the inexplicable problems of having a document that is both basic and higher (aspirational) law whose meaning has to change as time changes.

This, of course, is balanced with the whole problem that Thomas, like all Justices, picks and choses the issues on which he practices his philosophy. On WRTL, for example, he joined the majority in an originalist take on the 1st Am., yet somehow managed to find a penumbra of a corporation in the 14th Am. Oh, wait... that was stare decisis for you. My bad.
9.24.2007 11:53pm
loki13 (mail):
"Thomas* has less respect for stare decisis when he believe it conflicts with
his interpretation
of texturalism or original expected application."

That is the problem with the "living constitution".

Easy come, easy go.

Pin Head-
Added the emphasis for the lazy reader. Is my statement more clear now?
9.24.2007 11:55pm
OrinKerr:
Thanks for explaining, Frank. I look forward to reading more.
9.24.2007 11:57pm
Pin Head (mail):
"Is my statement more clear now?"

Your statement was always accurately transcribed and understood.

If J. Thomas has less respect for stare decisis when it conflicts with his interpretation, anyone else can too.

Easy come, easy go is really "living".
9.25.2007 12:04am
guest:
VC readers will know this movement either doesn't exist or consists of three dudes meeting for dinner once in a while.


So, I guess this confirms my suspicion that Professor Kerr's colleague (and my former Con Law II professor), Jeffrey Rosen, is not a VC reader.
9.25.2007 12:08am
Stuart Buck (mail) (www):
Sorry if I misinterpreted you, but since the discussion from the outset was about whether Brennan could be said to have more "reverence" for precedent than Thomas, and since you suggested that citation counts are a "crude measure" for . . . something, it seemed a fairly close logical leap to assume that you meant that citation counts are a "crude measure" for "reverence."

I do agree that Justices might cite more cases when they are overruling a precedent, i.e., by seeking (or pretending to find) support from elsewhere.
9.25.2007 12:08am
andy (mail) (www):
One of the several things that I thought odd about the book was Toobin's repeated insistence that Scalia has had no influence on the Court and just pushes other people away.

The entire enterprise of statutory interpretation has changed in the past 20 year, in no small part thanks to Justice Scalia. Why Toobin keeps saying Scalia has had no influence seems baseless -- both conservatives and liberals agree that we interpret statutes differently now.

I also agree with Mr. Kerr's comment that, because Toobin views law as a political instrument, that he seemingly projects his own views onto others; since presumably Toobin would decide cases based on his own policy preferences, he seems to think that everyone on the Court does, too (sort of like how "liars don't believe anyone else").

this book does provide some useful information and I enjoyed reading it. but he levies cheap shots on conservatives every few pages, and his thinly veiled bitterness gets tiring after a while. additionally, it's strange that he so blatantly mischaracterizes conservatives' statements -- e.g., if Scalia had actually called Toobin a "nut," don't you think we would have heard about it by now? instead, Toobin took one of Scalia's canned lines out of context and "revealed" to the world for the first time Scalia's mean remark for his colleague.
9.25.2007 12:48am
Kazinski:
Frank,
You can't just count whether they are citing precedents without some measure of whether the opinion actually follows precedent.

It is a time honored tradition in both the Supreme Court and the lower courts to reverently cite precedent and then go on to do the exact opposite, or at least a substantial deviation.
9.25.2007 1:31am
Nom (mail):
Yeah, Brennan, of all people, was a real stickler for precedent - for example, his dissent in every death penalty case refusing to respect the precedents upholding the constitutionality of capital punishment. The liberals don't let precednt bind them - look at the eleventh amendment decisions (Hans v. Louisiana is a case from 1890 yet it and its descendents are repeatedly dismissed by the four liberals), or the overturning of Bowers v. Hardwick by Lawrence v. Texas. Also witness the recent case overturning a precedent permitting execution of those under 18.
9.25.2007 1:40am
Randy R. (mail):
Nom: "The liberals don't let precednt bind them... the overturning of Bowers v. Hardwick by Lawrence v. Texas."

Then you would have to count O'Connor, Kennedy, Souter, Stevens and Breyer as all liberals.
9.25.2007 2:01am
Nom (mail):
Randy:

Err, yeah. Haven't you heard of how Kennedy and O'Connor shifted to the left after Bush v. Gore so they wouldn't get shunned at DC cocktail parties? And Souter, Stevens and Breyer are liberals by anyone's lights. Though, of course, O'Connor flip-flopped, voting with the majority in Hardwick and in Lawrence.
9.25.2007 3:19am
Sebastian Holsclaw (mail):
Brennan developed a reverence for Court precedent? Surely Toobin is aware of the death penalty cases? The obscenity precedent where Brennan overrules his own precedents? How could anyone seriously write that about Brennan. You might admire him for other things, but a reverence for precedent? It casts doubt on his ability to analyze the Court at all for Toobin to write that.
9.25.2007 4:16am
LongSufferingRaidersFan (mail):
I took a statutory interpretation class taught by Breyer back in 1997 and let me tell you, nothing could be more "scary" than letting that so-eager-to-be-popular-with-the-kids-it-hurts lib anywhere near the levers of power. I have to kind of admire him for coming right out and admitting that he is smarter than the founding fathers and above democracy, though. Nice to hear him say what every other lib since Roosevelt has been thinking. Article V? Never heard of it.....
9.25.2007 5:03am
Tim Dowling (mail):
Justice Scalia reportedly once said that Justice Thomas "doesn't believe in stare decisis, period."

You might want to cut Rosen some slack on this one. The assertion might be an overstatement, but he's not making this stuff up out of whole cloth.

Is the author of "Restoring the Lost Constitution" one of the 3 dudes?
9.25.2007 10:06am
Tim Dowling (mail):
oops, meant Toobin, not Rosen
9.25.2007 10:09am
JosephSlater (mail):
Orin:

To what extent is your objection/dismissal of the "Constitution in Exile" meme based on the idea that conservatives/right-wingers don't use that particular phrase? That seems to be what the linked thread was about. And that's not the same issue as whether a group of certain legal conservatives would like to see a return to pre-New Deal Con Law on a number of topics. As some of the commenters in the linked thread note, there are some who think, e.g., that Lochner was correctly decided.

In other words, is it just the name "Constitution in Exile Movement" that you object to, or do you deny that there is any significant intellectual trend out there?

Me personally, I don't think that we could return to a pre-New Deal constitution -- at least not without a huge and extremely unlikely quasi-revolution in political and social thought). So I'm not sure it matters.
9.25.2007 10:34am
Anderson (mail):
To what extent is your objection/dismissal of the "Constitution in Exile" meme based on the idea that conservatives/right-wingers don't use that particular phrase?

Yes, that mystified me in the VC discussion a while back - the focus on the magic words.

I would like to see Justice Scalia put on the spot about whether the New Deal was consistent with the Constitution.
9.25.2007 11:08am
Shertaugh:
On Justice Thomas, Toobin recounts a remarkable (IMO) comment by Justice Scalia during Toobin's interview on NPR's "Fresh Air" with Terry Gross.

Toobin says he heard Scalia give a speech in NYC. During the Q&A, someone asked Scalia what the difference was between his jurisprudence and Thomas's.

Scalia, per Toobin, spoke for a bit then said, "Look, I'm a conservative; I'm an originalist; I'm a textualist. BUT I'M NOT A NUT."

Click "Listen". Toobin's account of Scalia's remarks start at 26:10 and end at 26:35.

Here's a link to the interview.
9.25.2007 11:12am
OrinKerr:
Tim Dowling writes:
Justice Scalia reportedly once said that Justice Thomas "doesn't believe in stare decisis, period."

You might want to cut Rosen some slack on this one. The assertion might be an overstatement, but he's not making this stuff up out of whole cloth.
It is a curious fact of our legal culture that when Justice Scalia exaggerates in a way that criticizes liberals -- for example, his claim that "you would have to be an idiot" to believe in a living Constitution -- he is widely dismissed as a blowhard and his comments are taken to prove how ridiculous he is.

On the other hand, when Justice Scalia exaggerates in a way that says something liberals want to hear -- for example, his claim that Justice Thomas "doesn't believe in stare decisis, period" -- he is taken literally as if he is the arch angel Gabriel delivering God's truth.

A strange dynamic, I think.
Is the author of "Restoring the Lost Constitution" one of the 3 dudes?
I tend to think so.
9.25.2007 11:41am
mariner (mail):
I know my own opinion from reading cases is that J. Thomas* has less respect for stare decisis when he believe it conflicts with his interpretation of texturalism or original expected application. I find this worrisome (in the sense that stare decisis embodies a reliance value of scores or hundreds of years of judicial brainpower)...


This would be laugh-out-loud funny were it not that Loki13 seems to be serious.
9.25.2007 11:57am
Anderson (mail):
Prof. Kerr, the "curious fact of our legal culture" that you note, seems to work on a similar principle to the one behind the admission-against-interest hearsay exception. Is that surprising?
9.25.2007 12:01pm
frankcross (mail):
Orin, it's not that strange. We give greater credibility to "testimony against one's interests".

To elaborate on my quantitative claims. I think that it is true that justices cite cases to manipulate them. But I think this still shows some respect for precedent. They could have ignored them, or overruled them. People view reliance on precedent as "reverence" when in fact precedent is the way that judges project their political power. The theory is that in order to give precedent the power that justices want, they have to compromise somewhat and give it respect, if not reverence, in order to have real and credible power from stare decisis.

Thus, I think the difference between the Roberts/Alito approach and the Scalia/Thomas approach is an important one. Roberts, incidentally, had very high citation numbers in his first term. He may be a conservative Brennan in the sense that he is influenced both by ideological concerns and by concern for giving some respect to precedent.
9.25.2007 12:06pm
Anderson (mail):
I find this worrisome (in the sense that stare decisis embodies a reliance value of scores or hundreds of years of judicial brainpower)

Not a justification for the doctrine that *I* find persuasive, admittedly.
9.25.2007 12:10pm
loki13 (mail):

I find this worrisome (in the sense that stare decisis embodies a reliance value of scores or hundreds of years of judicial brainpower)

Not a justification for the doctrine that *I* find persuasive, admittedly.


You guys are right. Everything should be viewed de novo. We are the brightest generation. The fact that many of these issues have been litigated thousands of times in the past, in multiple permutations, and rules have been developed over time to deal with these issues by judges that have thought deeply about the issues is of no import. Stability in the law is not important, 'cuz everything is new, and we're just smarter than everyone that came before us. Hell, why bother with common law? The Constitution makes more sense as a civil code!

The end of (legal) history, indeed.
9.25.2007 12:16pm
Tim Dowling (mail):
Orin -- I would never mistake Justice Scalia for Gabriel. Michael perhaps, but not Gabriel. And I'd sooner drop dead than refer to Justice Scalia or any other member of the U.S. Supreme Court as a blowhard. I expressly noted that both Toobin and Justice Scalia might be exaggerating, and so I'm not sure how my post is evidence of the strange "dynamic." My purpose was simply to respond to suggestions in the thread that Toobin was making obviously false statements either to sell books or to advance his liberalism, or both. Similar statements made by others, whether true or not, seemed relevant to the conversation.
9.25.2007 12:39pm
Fraidy Cat (mail):
The phrase "Constitution in Exile" has become a liberal legal pundit's way of yelling "BOO!" Ginsberg used it in describing the nondelegation doctrine . Cass Sunstein picked it up to use it a cudgel and has used it effectively since. It is almost as scary to liberal bloggers as the Federalist Society.
9.25.2007 1:03pm
Fraidy Cat (mail):
Loki, It sounds like you are in favor of the common law as long as it is a ratchet that only turns left. I would be willing to bet that J. Thomas has great respect for decisions relying on "hundreds of years of judicial brainpower" while you are more interested in those that rely upon "scores" or maybe "score" years.
9.25.2007 1:10pm
loki13 (mail):
Fraidy Cat,

I am afraid you doth project too much. The problem I have with Justice Thomas is that of certitude- the idea that he has a 'revealed' meaning of the Constitution, which frees him from the constraints of stare decisis. My view is that his jurisprudence is simply the evil twin of the worst excesses of Brennan-style jurisprudence:
Where Brennan created new rights that arguably did not exist, Thomas instead chooses to selectively apply originalism to the issues he wishes to in order to achieve the results he wants. Both are result-oriented jurisprudence by different means. I see a great amount of effort to revisit the issue of incorporation and the commerce clause, but precious little of his magnifying glass focused on the presence of corporations in the 14th Am., standing in Art. III, and the original expected application of Article II. Maybe his 18th Century dictionary doesn't cover those topics?
9.25.2007 1:23pm
Curmudgeonly Ex-Clerk (www):
Anderson and Frank Cross:

I don't follow you. How is Scalia's statement akin to a statement against interest?

Scalia's statement is a comment distinguishing another justice's jurisprudence from his own. In this thread, it is being cited for the proposition that he and Thomas markedly differ from one another in their regard for precedent, and for the proposition that Thomas could or should be faulted for his lack of regard for precedent.

Professor Kerr reasonably points out that Scalia was being his usual hyperbolic self and that his statement about Thomas's regard for precedent should not be construed in too literal a fashion. You (Anderson and Frank Cross) then respond that Scalia's statement should be taken seriously because it is akin to an admission against interest.

But how can a statement by Scalia be an admission against Thomas's interests? (I assume that's what you mean, because I cannot figure out how Scalia's statement could be construed as an admission against his own interest, as no interest of his own seems to be compromised by his ostensibly negative comment about Thomas.) You seem to be implying that Scalia and Thomas are so alike or so ideologically married to one another that a statement by one may be employed as an admission against the other.

If I correctly apprehend your argument (and I may not), it seems odd to me. You seem to be arguing that Scalia's somewhat tongue-in-cheek assessment of his differences with Thomas (on precedent) can be taken nearly literally because the two are so alike as to be indistinguishable from one another. Or do you intend something else?
9.25.2007 1:45pm
frankcross (mail):
Well, Scalia obviously was being hyperbolic. But the testimony against interest analogy was made because Scalia and Thomas vote together so very frequently, as opposed to his votes with liberal justices. So he is saying that a regular ally is "nuts" as opposed to someone from whom he frequently dissents.

It would be the difference between the chairman of the DNCC criticizing Bush and criticizing Hlllary.
9.25.2007 2:00pm
Fraidy Cat (mail):
Loki, I may project to much. I agree with you that J. Thomas has an ideology and that it shows in his legal theories and decisions. I think a criticism of his alternating use of "original intent" and "original expected application" is more in order though.

What irks me is that Thomas is considered "insufficiently black", "an abomination" and "an embarrassment" based on his ideology. While the sun shines out of J. Brennan's every orifice, Thomas is often considered Scalia's chattel (which I believe is ex-clerk's point above--although more politely made).
9.25.2007 2:27pm
loki13 (mail):
Fraidy Cat,

I agree with you on the second part of your post. I think it is unfortunate that the media (and some legal scholars) continue to view Thomas as Scalia's handmaiden, when, arguably, Thomas has done more to influence Scalia than vice-versa.

I do not fault Thomas for his intelligence. Nor, for that matter, would I fault Brennan or most Justices in modern history. I simply do not agree with his (or Brennan's) jurisprudential philosophy.
9.25.2007 2:40pm