Justice Thomas On The Place of Originalism

Brian Tamanaha

Justice Thomas recently, in an almost off-handed fashion, made several important observations:

Speaking...at the University of Florida law school, Thomas said the Court's decisions should be questioned, but he is bothered by rhetoric suggesting its justices have ulterior motives, the Associated Press reports.

He is correct to object that we (legal types) are too quick to suspect the motives of Supreme Court justices. This skeptical tendency is corrosive of law, unwarranted and unfair (except for the occasional one-off like Bush v. Gore). The sitting justices, by all indications, are people with integrity who sincerely render decisions in accordance with their good faith reading of the law.

Why, then, do the justices so often decide along what appears to be political lines?

"There are different approaches, because we start with different assumptions. Or we look at things differently," he reportedly said. "And I think law school should encourage you that these differences are acceptable in our legal system. And in the end, it is what strengthens and informs our legal system."

Again Justice Thomas is correct, making three distinct points of significance.

First, he acknowledged that justices have different starting assumptions--which includes having different views of the proper modes of constitutional and statutory interpretation (originalist, pragmatist, minimalist, etc.). Skeptics suggest that these jurisprudential views merely serve to cover political decision making, but a better explanation of the connection is that their political views incline them toward adopting jurisprudential theories congenial to their views. This does not amount to the same thing (politics at bottom!) because the jurisprudential theory has its own implications and requirements that can and do regularly point away from a justice's political preferences.

Second, Justice Thomas acknowledged that justices see the world differently--each from a different perspective--which subtly colors just about everything, from how they perceive the facts, to the interests at stake, to the purposes and consequences of the laws at issue, to the applicable theory of legal interpretation, etc. These different perspectives on the world will naturally, inevitably, generate different legal decisions (though in a significant proportion of cases they will nonetheless agree on the law).

Lastly, he is correct to note that the above two sources of differences among the justices are normal (indeed they cannot be eliminated), and furthermore, they are beneficial to the development of law--and he urged that law students should be taught this in law school. (A good place to start is Beyond the Formalist-Realist Divide.)

I would add to Thomas's recommendation that U.S. Senators should also be taught this lesson--in the hope that they might stop intimidating judicial nominees into proclaiming (dishonestly) that their personal views will have absolutely no impact on their judicial decisions (they know quite well there is an indirect impact, at least).

It is especially interesting that Justice Thomas, who espouses a strict (extreme) version of originalism, would make these observations. He is genuinely taken with the conviction that originalism is the correct theory of constitutional interpretation--but his observations acknowledge that other justices are genuinely and properly (legitimately) taken with their own views of the correct approach.

His observations also imply that even in his own view, perhaps surprisingly, it would not be good for the law if all the justices were persuaded to adopt his strict originalism (shudder at the thought). Unanimity among justices on the correct jurisprudential or interpretive theory would be bad--even with a sound theory--because the interplay of different assumptions and perspectives among the justices is healthy for the development of law. But even if the justices came to agree upon a single theory of interpretation, his comments suggest that they would still decide differently owing to differences in their perspectives, which will influence how this theory plays out. I'm not sure that is what Thomas meant (I may be reading too much into his statements), but these are the implications of his observations.





Posted 7:00 AM by Brian Tamanaha [link]