Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Taking Thomas Seriously

A few comments came in today via e-mail and other blogs, and on a topic I was surprised to hear about, my offhand remark:

I don’t think Thomas has shown himself to be a particularly good Justice, and if Estrada turns out to be Thomas-like, I think a court would be the worse for it. Even most conservatives don’t really like Thomas. (Sure, they tolerate him because he votes right, but don’t tell me they wouldn’t generally prefer an opinion from Scalia or Kennedy, or maybe Rehnquist.)

It turns out that Justice Thomas has some supporters out there. Stuart Buck was the first, as far as I can tell, and Howard Bashman concurs; I also have three private e-mails from people, whom we’ll call for purposes of discussion George, Rick, and Seth.

The case for Taking Thomas Seriously

Stuart Buck wrote:

His concurrence in Zelman, where he exposed the elitism of white liberals who are opposed to allowing poor black children the option of school choice; his concurrences in the Commerce Clause cases (Morrison and Lopez), where he alone took the position that the Supreme Court should rethink its New Deal jurisprudence; his plurality opinion in Mitchell v. Helms, where he exposed the Supreme Court’s focus on whether an institution is “pervasively sectarian” as a doctrine “born of bigotry” among 19th-century, nativist, anti-Catholics. The list could go on and on. These are the sort of courageous and brilliant opinions that make conservatives stand up and cheer.

Thomas is the most intellectually consistent originalist on the Court, one not afraid to follow his philosophy where it leads him, whether that be urging the overruling of a 200-year-old precedent (as he did in Eastern Enterprises as to an ex post facto case from the very early 19th century), or whether it be taking the most “liberal” position of anyone on the Court, as he has done on several occasions (such as in Indianapolis v. Edmonds, where he alone urged that the Court overrule all its precedents that allow random searches by the police, or in United States v. Hubbell.

George pointed out a Weekly Standard article from a few years back calling Justice Thomas America’s Leading Conservative.

Rick points out “See CT in, e.g., Lopez, Camps Owatonna, Mitchell, Saenz, etc”

And Seth cites approvingly to Thomas’s dissent in Term Limits.

Not a bad case, guys.

Reasons for the Original Post

I can’t claim to be a Thomas expert, though I do have a legal background. I read a lot of Supreme Court opinions, and discuss the law regularly and in depth with my judge and with large numbers of clerks and lawyers of all philosophical persuasions. I read law reviews regularly, and I also had the task in law school of reading several hundred law review submissions, many of which dealt with Constitutional law (aside to aspiring law writers: write on something besides con law. Pick something academics consider boring, like antitrust or choices of laws or family law. In a year of reading submissions, I don’t think I saw a single good article on choices of laws or family law, and there was only one good antitrust piece, which died in committee).

I wrote what I did based on my impression of Justice Thomas. I couldn’t remember reading a single important conservative majority opinion CT had authored. I remembered him cropping up with a few dissents and concurrences, but my general impression was that in important cases, he simply signed on to Scalia dissents. I had also been told by a few conservative friends that they love to read Scalia opinions. While they never said anything negative about CT, neither did they express enthusiasm to me about reading his opinions. So that’s how I arrived at my conclusion. No research was done, but that was the impression I had of Justice Thomas. (It came in under the present-sense impression exception).

Tentative Findings

The above-mentioned Thomas supporters have pointed out numerous cases of some importance on which CT wrote. And so I’m modifying my stance somewhat. To the extent, if any, that my post conveyed the impression that I thought Justice Thomas was a bad Justice, I stand corrected. (I never thought he was a bad Justice, just less preferable than others, but that’s certainly a reasonable reading of my post). Justice Thomas has clearly written some intelligent, important opinions. To the extent that I included Kennedy in the calculation, I also stand corrected. (What was I thinking? It must have been the residual effect of a few decisions Kennedy wrote).

But see . . .

However, I’m still not convinced that Thomas surpasses either Rehnquist or Scalia. Here’s why not:

(1) When the conservative wing of the court (for lack of a better term) needs a conservative decision which will become law, Rehnquist often writes it. Lopez was a Rehnquist opinion (I know CT wrote a concurrence, but Rehnquist wrote the opinion, and that’s what became law). Rehnquist wrote Dale. Rehnquist wrote the concurrence to Bush v. Gore.

(2) When conservatives lose a controversial case that might merit a fiery dissent, Scalia generally supplies the fire. Scalia was the dissenter in Romer, and he was the dissenter in St. Cyr and Zadvydas. It’s not always so — Rehnquist dissented in Santa Fe and Atkins, and Thomas in Penry, but the Scalia dissent is the norm. Scalia is also the leading proponent of originalism and textualism in legal literature, the author of the originalist bible A Matter of Interpretation, as well as numerous articles like Originalism: The Lesser Evil.

These facts suggest to me that Thomas is still only the third-most-important conservative Justice. But I’m not sure about the issue.

New Question

Is Thomas more important to conservatives than Scalia and/or Rehnquist? I would like to know Thomas’s relative importance, but after flubbing the issue the last time, I’m not sure of my ability to judge it.

The e-mails in thus far address the implied critique “Thomas isn’t a lightweight” more than they do the question of how important he is compared with other Justices. So, I would like to put the case on for further argument, and pose the following questions to Thomas-philes everywhere:

(By the way, please note in any reply if you’re conservative, liberal, or undecided, as this test is to try and gauge the importance of Thomas to conservatives and I don’t want liberals stuffing the ballot box on the issue):

1. If one of the three conservative Justices had to retire tomorrow, who would you pick?

2. If Justice Thomas retired tomorrow and was replaced by Easterbrook, would that be a net gain? If he were replaced by Bork? By Luttig? Is there anyone who would make the transaction a net gain (Starr, Posner, Kozinski, etc)?


September 27, 2002 - Posted by | Uncategorized

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