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Saturday, June 29, 2013

Justice Thomas

Eric Posner says of Clarence Thomas, "Justice Thomas has integrity, but it’s the integrity of a madman. He is the Ron Paul of the Supreme Court."  Well, I thought Glenn Greenawald made a good point about Ron Paul, but in any event this has been a very interesting month for Justice Thomas.

  • He wrote separate concurrences in Fisher and Shelby County which heavily invoked the civil rights movement but were mysteriously quiet about the original meaning of the 14th and 15th Amendments.
  • He continues a willingness to rethink entrenched but highly dubious precedents, arguing that prosecutors ought to be able to comment on a defendant's refusal to testify, and that the federal government does not have plenary power over Indian affairs.
  • He wrote the majority opinion in Alleyne, a huge blow against overly punitive mandatory minimum sentences, and possibly one of his most important majority opinions ever.  (Justice Breyer, what took you so long?)
  • The Court extended one of his other important majority opinions (Gross v. FBL) in UT SW v. Nassar.
  • He demonstrated a refreshing indifference to the "anti-canon," citing Bush v. Gore in a dissent about the Elections Clause and citing Korematsu (seemingly approvingly) in a discussion of strict scrutiny.  (Jamal Greene attributes the latter to Justice Thomas's "quasi-religious devotion to constitutional rules over standards, born of his evident hostility to judicial discretion."  But I don't think that's right.  Justice Thomas is not nearly as passionate about rules over standards as Justice Scalia is; what he has is a Hobbesian streak in terms of government power to avert anarchy.)
  • And last but not least, he was the only justice to get the jurisdictional issues correct in both Windsor and Perry (which is to say, he dissented in both).  In Windsor, the United States asked for the judgment to be affirmed, which should have scuttled the case.  In Perry, the state of California (represented by a guy named Hollingsworth) asked for it to be reversed, which should have kept it alive. 
I'm not saying he was right about everything, but he doesn't sound like a "madman" to me.  And I think liberals ought to be embarrassed not to have anybody on the Court who can serve as a counterweight.

Posted by Will Baude on June 29, 2013 at 11:09 AM | Permalink


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If Justice Thomas had his way in the DOMA case, would it not have had nearly the same effect as the majority ruling does?

(I understand that there is currently a lawsuit involving the applicability of DOMA in private litigation. See Cozen O' Connor v. Tobits, (E.D. Pa.) and Justice Thomas's proposed disposition would have had no bearing on that case. But it would have enjoined the President- and, by extension, the entire Executive Branch, from enforcing or applying DOMA.)

Posted by: Michael Ejercito | Jul 4, 2013 12:36:05 PM

This bullet list reminded me of the Borges passage, cited by Foucault, which quotes a ‘certain Chinese encyclopedia’ that divides animals into the following categories: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camelhair brush, (1) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies.

Posted by: AF | Jul 1, 2013 3:13:12 PM

Since Thomas has been on the bench, Korematsu has only been cited 10 times (in 8 cases). Three have been by Thomas. At least 4 were citing Korematsu with disapproval (none of those were Thomas).

Of the current Justices only Thomas, Roberts and Scalia have cited Korematsu for anything. In a footnote in Parents Involved Roberts cited Loving quoting Korematsu. Justice Scalia cited Justice Jackson's Korematsu dissent in Madsen.

Justice Thomas is the only current Justice to directly cite Korematsu for anything. Though you certainly could read the paragraph in Fisher as standing for nothing more than the premise that racial classifications get strict scrutiny (I think he has about a hundred other cases he could have cited for that principle), it sure feels like he is saying that the internment of Japanese-Americans without any particularized justification (and for which we have since apologized and paid reparations) is a more justifiable action that using race, in a non-quantifiable holistic way, for college admissions decisions.

I certainly do not find that refreshing and believe Korematsu is properly in the "anti-canon" and should not be cited approvingly for anything, particularly when there are cases in the canon that are far less offensive (and therefore more compelling).

Posted by: P Klym | Jul 1, 2013 10:00:14 AM

Thomas's approving citation of Korematsu in Fisher is practically a cut-and-paste from his dissent in Grutter (which was joined by Scalia). O'Connor also cited Korematsu for the strict scrutiny standard in Adarand. I'm not sure what Prof. Muller is getting so excited about.

What's bad about Korematsu is where the Court ultimately came out, not necessarily in what it said about strict scrutiny. As O'Connor said, 'But in spite of the "most rigid scrutiny" standard it had just set forth, the Court then inexplicably relied on "the principles we announced in the Hirabayashi case," to conclude that, although "exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p. m. to 6 a. m.," the racially discriminatory order was nonetheless within the Federal Government's power.'

Korematsu is only "anti-canon" if you cite it approvingly for the idea that a vague suspicion of foreign agents is a justification for mistreating everyone of Japanese descent on the West Coast. Citing it approvingly for its articulation of strict scrutiny seems reasonable.

Posted by: PG | Jun 30, 2013 4:31:35 PM

Alleyne is terrible.

Posted by: Yaakov | Jun 29, 2013 11:49:28 PM

Just on the point of liberal counterweight, I still have hopes for Elena Kagan. Along with others: http://mobile.nytimes.com/2013/06/30/opinion/sunday/the-talented-justice-kagan.html

Posted by: Dan Markel | Jun 29, 2013 11:10:43 PM

"Inconsistency with my beliefs . . . ."

So Clarence Thomas isn't a madman according to Will Baude, who may himself be a madman. Interesting way to measure . . . .

Posted by: Lower 'em | Jun 29, 2013 5:05:46 PM

1: Inconsistency with my beliefs about how the Constitution ought to be interpreted (preferably but not necessarily combined with some additional reasons to think that the precedent has continuing negative ramifications for the world or the law).

2: More complicated, but Justice Thomas's willingness to follow his own constitutional vision without worrying overmuch about the social norms of the establishment is refreshing, and probably a good thing, at least on a Court where most others don't behave that way. And to the extent the cases are wrong or bad, they probably ought to be overruled rather than ignored.

Posted by: William Baude | Jun 29, 2013 12:21:24 PM

Just wondering:

What makes a well-entrenched precedent "highly dubious"?

And why is it "refreshing" to see quotes from Korematsu and Bush v. Gore?

Posted by: Marty Lederman | Jun 29, 2013 12:07:14 PM

I think it's a stretch to say that Thomas cited Korematsu approvingly. He cited it for the proposition that (a) race classifications get strict scrutiny and (b) one of the few things that can overcome strict scrutiny is emergency national security concerns. So far as I know, that's a correct statement of the law. Thomas didn't ritually denounce Korematsu for applying the standard incorrectly to the facts of that case, but he didn't say it was rightly decided, either.

Posted by: lurkinglawprof | Jun 29, 2013 11:36:48 AM

Sorry for the passed/past typo. First cup of coffee.

Posted by: SRS | Jun 29, 2013 11:22:25 AM

Obviously, Thomas takes a beating beyond what's appropriate, let alone necessary - from both the left and folks like Eric. That said, liberals can barely get a moderate onto the bench - why should any be embarrassed that they can't get an intellectual counterweight passed the entrenched obstructionism of Congress?

Posted by: SRS | Jun 29, 2013 11:19:40 AM

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