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More on Jeffrey Toobin's The Nine and Justice Thomas:

In my post on this last week, I forgot to include one item that strikes me as especially telling. It's from p. 102:

Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects -- "dogs," in the Court's parlance. When asked which of his opinions was his favorite, Thomas would usually cite a 1996 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a "knuckle" between two cars. "It was a little case that didn't matter to anyone," Thomas said in a speech. "It's almost inconsequential. It was a fun little opinion. I went back into the history of trains." (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas's opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)

This is precisely the sort of thing you wouldn't expect in a book that takes the Supreme Court seriously. The first sentence is probably right, and a sensible evaluation of Justice Thomas's influence as a majority opinion writer (as opposed to as one of nine votes, or as a dissenter). It's a judgment call, of course, but my sense is that indeed Justice Thomas had not been assigned to write the majority opinion in the most high-profile, controversial, or otherwise important cases.

Look, though, at the parenthetical. The case, we're told, is not inconsequential because it had an effect on some litigants, and because the particular litigant in this case couldn't recover for his serious injury. But Justice Thomas was of course talking about how inconsequential the case was by the standards of the Court. He and other Court-watchers know that the Court agrees to about 1% of all the cases it's asked to take. It doesn't take cases, especially cases on statutory interpretation, just to resolve an error below, or even set forth the right rule; it takes them to set the lower courts straight on an important topic that is likely to arise repeatedly.

And by the standards of the Court's cases, this particular case, Nortfolk & Western Ry. Co. v. Hiles, is indeed of little consequence. Consider one measure of consequence -- the degree to which the case is cited by other cases. (This isn't a perfect measure, but it's a good first cut.) Hiles is in volume 516 of U.S. Reports, which contains 33 cases decided by opinion. Those 33 cases put together were cited in 1769 cases in 2006, for an average of about 50 yearly cites per case. Hiles was cited in 1 case in that year, a little below the average of 2 cases per year since it was handed down.

I can understand how an average editorialist who wants to complain about Justice Thomas could make this sort of argument. No case in which people were maimed and as a result of which others would be denied recovery, the argument would go, should be treated as inconsequential or insignificant. Justices should treat each case as important. Oh, and let's add a whiff of "the youngest, cruelest justice" -- how could Justice Thomas be so insensitive to the plight of poor William Hiles?

But someone who is writing a serious book about the Supreme Court can't, I think, take this sort of view. The Justices are asked to hear several thousand cases each year. Many of them center around one or another tragedy. Consequence to one or a few people, while enough to bring a tear to the eye of some journalists, can't be the measure of a case's significance to a serious commentator on the Supreme Court.

And of course Jeffrey Toobin takes precisely this view in the opening sentence: None of Justice Thomas's majority opinions were "truly significant." Of course all of them affected the litigants, and affected the law, but significance is a comparative matter. Yet let Justice Thomas refer to the "[not] truly significant" cases as "almost inconsequential," and he gets condemned for apparently neglecting the importance of horrific accidents and an injured plaintiff (a plaintiff whose legal claim, incidentally, was rejected by a unanimous Court, not just Justice Thomas).

All this, I think, reinforces my diagnosis: What is otherwise a serious book about a serious subject doesn't seem able to maintain its seriousness when it comes to this particular Justice.

Dennis Nolan (mail):
People in other specialties no doubt have their own thoughts, but most labor lawyers would regard Lechmere, Inc. v. NLRB< 502 U.S. 527 (1992) as a "truly significant majority opinion."
9.25.2007 2:36pm
Miss. Lawyer (mail):
I agree with your analysis completely. The excerpt you quote is internally inconsistent in its attempt to cast a negative characterization on Justice Thomas. It takes two swipes at him: 1) calling his opinions insignificant and 2) criticizing him for calling his opinions insignificant. It is hard for someone who has not read the book to read that quotation and take it seriously.
9.25.2007 2:38pm
steve lubet (mail):

"It's almost inconsequential. It was a fun little opinion. I went back into the history of trains."


I'm sure it was unfair to single out Justice Thomas (because others do the same thing), but there is still something discordant about denying compensation to a permanently disabled worker while calling it "a fun little opinion."
9.25.2007 2:41pm
mobathome:
Prof. Volokh: I'll bet you think the author excised all of Thomas' comments on the human impact of Supreme Court decisions.
9.25.2007 2:42pm
merevaudevillian:
First, much the same claim could be said for Justice Ginsburg, which, apart from VMI and perhaps Friends of the Earth, suffers from being a junior justice who doesn't control a "swing vote."

Second, Thomas has had some "truly significant majority opinions," but I guess it all comes down to defining "truly significant." He wrote the plurality for Patane, and the majority in Good News Club. He also wrote Samson v. California, Kansas v. Marsh, Lawrence v. Florida, which, while not as sexy in the eyes of the media, end up making a fair impact on the law.
9.25.2007 2:45pm
M. Lederman (mail):
"Consequence to one or a few people, while enough to bring a tear to the eye of some journalists, can't be the measure of a case's significance to a serious commentator on the Supreme Court."

Perhaps. But consequences to many folks -- or to a few important ones -- makes the case, uh, "not inconsequential." And so, if, indeed, Mauro and Toobin are correct that "Thomas's opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling" (I don't have any idea whether that's so, or how many such cases there are), then the case is of quite "consequential" significance, indeed. The practical effect of Supreme Court decisions, in other words (think of, e.g., Bush v. Gore) is much more important than how frequently lawyers and judges might cite the case in the future (although of course such precedential effect, too, can have enormous practical consequences).

Toobin's simple point here is that Thomas appeared to be oblivious to this important understanding of the Court's role. Thomas's comments about the so-called inconsequentiality of his opinion -- that it was a "fun" case and that it "didn't matter to anyone" -- were, at best, strikingly insensitive, in that they appeared to ignore the profound impact the decision might have on the physical well-being of railroad workers who suffer such horrific accidents. In other words, Thomas here seemed to treat the opinion-writing function as if it were simply a sport for lawyers -- his favorite case is one in which he made it much harder for workers to recover for such accidents, just because he was able to do some interesting research on trains?! -- rather than a solemn obligation that has a profound impact on the class of people affected. I don't know whether the statement is indicative of Thomas's attitude more generally, but it was very revealing -- which is why Toobin properly emphasizes it.
9.25.2007 2:58pm
Matthew Ericson:
I think the quoted text makes an even bigger mistake: It first claims that Justice Thomas has written no significant majority decisions


Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written.


And then it follows that by using a quote that castigates Thomas for writing a unanimous decisions that was "consequential."



[T]he case was not inconsequential. Thomas's opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)


If that's not author bias, I don't know what is!
9.25.2007 3:01pm
andy (mail) (www):
It's almost humorous how Toobin describes most of O'Connor's opinions as having the effect of saving us from ourselves and steering society in a utopian direction, but most of Thomas's and Scalia's are ridiculed as inconsequential or without influence.

If 20% of this book were slashed, it could be great. The author obvoiusly spent a lot of time doing research and uncovered important facts. Why did he spoil it all by putting a mean-spirited gloss over the entire book? It would have been better to provide an objective view throughout the book, and then put the blowhard stuff all in a single chapter at the end. Instead, one is forced to examine both the wheat and the chaff.
9.25.2007 3:23pm
tvk:
EV, I have to strongly disagree with you. At least in the light that Toobin is presenting the Thomas quote, Thomas wrote the opinion having more "fun" looking into the history of railroads than appreciating the gravity of his decision on litigants. Now, it may well be that Toobin's presentation is misleading or biased. But, if it is accurate, I think that is reprehensible.

Consider it this way. If President Bush, in talking about a particular small operation in the Iraq war where 5 soliders died (by the standards of war, inconsequential), said: "It's almost inconsequential. It was a fun little [operation]. I went back into the [geography] of [Iraq]" while ignoring the casulties; he would be justly pilloried.

Of course, both President Bush and Justice Thomas have very important things to do; and they cannot devote their attention to every worthwhile detail even if it affects some individuals in a very significant way. That is something to be regretted, not relished. To publicly forget the individual pain inflicted by one's decisions is not only bad politics, it is an abdication of a sacred responsibility of those in power.
9.25.2007 3:24pm
RL:
This post seems like nit-picking to me. Come on, Thomas said that this was "a little case that didn't matter to anyone." It's easy for judges, conservatives and liberals, to lose sight of the fact that their opinions impact people's lives. Thomas' comment is especially insensitive in this regard. Toobin's point, albeit a bit over-dramatic, is that every case matters to someone. If Thomas hadn't said what he said, I doubt Toobin would have mentioned the details of the case.

I'm looking forward to reading the book to see if it is really so much worse than JCG's, which I found facile but which seemed to get a much more positive reception here and elsewhere.
9.25.2007 3:26pm
Eugene Volokh (www):
Marty: So I take it you'd fault Toobin for suggesting that Justice Thomas hasn't written any truly significant opinions, given that even this case may well be "of quite 'consequential' significance"?

Tvk: President Bush sends soldiers to their deaths, as have all other wartime Presidents. It's his decision, and, no, it's not fun.

But Justices are asked to resolve disputes between litigants. They don't crash railroad cars together to injure workers; they don't even set the railroad cars in motion. They don't "inflict[]" "individual pain" in the sense of physical injury: At most, in civil cases, they decide whether defendants must pay plaintiffs money or not. They come after the fact to be impartial arbiters of what the law is, and they (especially when they are on appellate courts) are deliberately placed far from the blood and personal anguish of the litigants.

It therefore does not seem wrong for judges to have fun doing legal research and writing an opinion, even when unfortunately the occasion for the opinion is someone's injury -- just as I can have fun writing about the Second Amendment even though at bottom the gun control debates (whichever side you're on) are about occasions of pain, crime, and death.
9.25.2007 3:34pm
MDJD2B (mail):
Surprise! Judges have a different perspective than litigants!

Isn't this true of all professionals? How often, for example, do surgeons say they did a "fun case" when the patients are receiving nargotic analgesia and may have permanent sequelae of the "fun case" like a colostomy? May trial lawyers derive pleasure from trying a case? Their clients hate being parties to litigation. Should prosecutors feel ambivalent when they win a conviction? The crime is water under the bridge; all they have done is to cause the alleged perp to be punished.

Let's not be indignant at professionals because they derive from socially productive work that may make others unhappy.

As for the case that this thread is discussing, it was unanimous, so even liberals like Ginsburg and principled conservatives like Stevens must have signed on to the opinion. No just evil Clarence, but the rest of the worthies were willing to consign railroad workers to being maimed without receiving the sort of remedy that Mr. Hiles sought.
9.25.2007 3:44pm
tvk:
EV, no offense, but your writings on the Second Amendment are not likely to have any effect on anyone's life (except your own and a few law review editors). Thomas's opinion, however, is likely to have such an effect, and Toobin's quote is making (again, not sure whether Toobin is quoting accurately or fairly) the point that Thomas seems to be forgetting that. While Thomas surely has better things to do than worry about every litigant who might be affected by his opinions (e.g. making sure his opinions are right), having personal fun looking into the history of railroads--at the expense of concern for individuals--is not one of them.
9.25.2007 3:46pm
Bla bla (mail):
There's another problem here. Say Thomas didn't write any "significant" majority opinions. So what? What does this say about him as a Justice? Nothing. It really just means that Rhenquist/Stevens never assigned him the opinion in important cases. Maybe this is because they disagree with him and so don't want him to write the opinions in the big cases. But are we supposed to think less of Justice Thomas because Rhenquist and Stevens disagree with him? Maybe stalwart supporters of either of those Justices would, but I certainly don't.

Also, in a lot of the big cases, O'Conner/Kennedy get the assignment because they are the swing vote and the senior justice in the majority figures that if they assign the swing voter the case, they'll be less likely to switch to the other side. But does this mean that we should respect O'Conner/Kennedy more? Clearly not.
9.25.2007 3:55pm
GV_:
Matthew Ericson, there's quite a bit of sunlight between saying something is "truly significant" and "consequential." I would have thought this was so obvious as to not require correction, but then Eugene makes the same mistake in one of his comments.

I think Marty has it exactly right. It's a shame that some judges forget that they are dealing with real people's lives.
9.25.2007 4:02pm
Stuart Buck (mail) (www):
Don't give Toobin too much credit for being right in his first sentence. Aren't the following Thomas opinions "high-profile" or at least "otherwise important"?

Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (important for standing under the Equal Protection clause).

GOOD NEWS CLUB V. MILFORD CENTRAL SCHOOL, 533 U.S. 98 (2001) (important for free speech vs. Establishment Clause).

NATIONAL CABLE &TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES, 545 U.S. 967 (2005) (a very important telecommunications case).

MITCHELL V. HELMS, 530 U.S. 793 (2000) (important Establishment Clause case).

United States v. Bajakajian (first case striking down federal fine under Excessive Fines clause).

Ashcroft v. ACLU (important First Amendment case involving Child Online Protection Act).
9.25.2007 5:46pm
happylee:
Thomas writes clearly and forcefully. Thomas works within a clearly defined (and eminently well-reasoned) analytical framework. Maybe that's why he is unpopular. He's better than Breyer, O'Connor or Kennedy.

How sad for Thomas. As the lone black man in a white man's club he is castigated for not being pink enough. Perhaps he should become a Duncan Kennedy convert and start rewriting the law with a big red marker.
9.25.2007 6:12pm
Not a Toobin fan:
If Thomas had more PC views, he'd be called the new great dissenter, or even the great concurr-er for pieces like Zelman. But, alas, he is a Bad Guy.

And what major opinion did Thurgood Marshall write? And why was he never portrayed as Brennan's sidekick, as with Scalia and Thomas?

A few more nuggets from EV and other sites and I may spare myself reading the book.
9.25.2007 6:50pm
Daryl Herbert (www):
a plaintiff whose legal claim, incidentally, was rejected by a unanimous Court, not just Justice Thomas

Talk about burying the lede! Thomas is a horrible jerk for ruling . . . the same way all of the other justices ruled.

Thomas caused pain and suffering to millions of workers injured in rail car coupling accidents every year . . . by not rallying four other justices to change their minds.
9.25.2007 9:20pm
JohnO (mail):
If we're going to castigate Justice Thomas for calling the case a "fun opinion," how come Toobin's hero, Justice O'Connor, gets no grief for starting an opinion about a murder case by paraphrasing the line from The Music Man about trouble in River City "with a capital T that rhymes with P which stands for pool"? Davis v. United States, 512 U.S. 452 (1994). I guess it's okay to crack wise in the opinion itself, but not to make light of the human element in talking about the opinion you wrote.
9.25.2007 9:53pm
David M. Nieporent (www):
Consider it this way. If President Bush, in talking about a particular small operation in the Iraq war where 5 soliders died (by the standards of war, inconsequential), said: "It's almost inconsequential. It was a fun little [operation]. I went back into the [geography] of [Iraq]" while ignoring the casulties; he would be justly pilloried.
Well, assuming that's true, there's a pretty big difference between being actually indirectly responsible for someone's injuries and merely writing an opinion about legal liability. Thomas didn't injure the person.


but there is still something discordant about denying compensation to a permanently disabled worker while calling it "a fun little opinion."
Thomas did no such thing. Hiles wasn't denied compensation. He was denied liability as a matter of law under the Safety Appliance Act. And Thomas didn't do it; Congress did. And he didn't do this "while" calling it a fun little opinion; he called it that years later.



Matthew Ericson, there's quite a bit of sunlight between saying something is "truly significant" and "consequential."
(1) No, there isn't.
(2) Thomas didn't say "consequential." He said almost [in]consequential.

I think Marty has it exactly right. It's a shame that some judges forget that they are dealing with real people's lives.
No, actually, it's good that they do... because they're supposed to be dealing with the law. We don't want judges making decisions based on sympathy.
9.26.2007 3:24am
frankcross (mail):
Back to my numbers. If you look at citations received by opinions, Thomas comes off reasonably well. About in the middle of the Court. So his opinions can't be too inconsequential.
9.26.2007 12:01pm
Mike O'Shea (mail) (www):
To add to Stuart Buck's list, here's another clearly important majority opinion by Justice Thomas: Federal Maritime Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002) (state's constitutional sovereign immunity extends to private civil actions brought before federal agencies).

Decided five to four, FMC was a significant step in the Rehnquist Court's development of sovereign immunity jurisprudence.
9.26.2007 7:06pm
Igglephan (mail):
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. ___ (2006)( patent-holders seeking preliminary relief must satisfy traditional equitable standard). Both a significant change in patent laws and economically significant.

I'd also say Markman is far and away Justice Souter's most important opinion.
9.28.2007 2:04pm