Sunday, October 23, 2016

Justice Thomas' 25 Years on the Supreme Court

Rick Pildes

This month marks the 25th year that Justice Clarence Thomas has been on the Supreme Court, which means he has now served one year longer than the man he replaced, Justice Thurgood Marshall (for whom I had the honor of clerking).  The major media are beginning to recognize this milestone, as in the stories here, here, and here. 

Very few academic symposia exist thus far that are devoted to assessing the body of work Justice Thomas has produced in that quarter century.  Among the most prominent law schools, the only such symposium of which I am aware is one produced nine years ago by the NYU Journal of Law and Liberty, entitled The Unknown Justice.  Contributors included federal and state judges, such as David Sentelle of the D.C. Circuit and Robert S. Smith of the NY Court of Appeals; academics, such as Professors Nicole Garnett, Greg Maggs, Sam Issacharoff, Stephen Smith; and others.  For that collection of articles, see Vol. 4, No. 3, at this link. For journalists looking for academic assessments of Justice Thomas' work on the Court, this symposium offers a rich set of perspectives.

I wrote the brief introduction to that Symposium, in which I described my personal experiences with Justice Thomas, which stem from a scholarship program he's been involved with at NYU for nearly two decades and conferences we have jointly hosted.  That introduction is here.    


I appreciate this window into a side of Justice Thomas that many of his opponents (and even some of his supporters) might not be aware of. I strongly disagree with many of his views, but have noticed that personal side that the more grumpy side of his public persona doesn't quite suggest. One concern I have for him not asking questions on the bench, even occasionally, is that such questioning would allow his alternative p.o.v. to engage some with the advocates. Before his years of silence (one day recently excepted), his still rare questions from the bench repeatedly provided that perspective.

This blog also addressed the Thomas phenomenon:

Thanks for those comments, they are gratifying to hear.

Rick Pildes

I guess my feelings about Thomas' jurisprudence can be said reworking a line from The Big Lebowki; say what you want about the tenets of his jurisprudence but at least it's an ethos. I don't think much of it but it's (usually) a coherent jurisprudential worldview.

I'd be more convinced that Thomas had a coherent world view if it weren't for the fact that he has to be the worst historian ever to sit on the Court (a truly incredible accomplishment, given the competition). Unless "coherent" means "pre-determined", I don't see it.

It seems possible he has a "coherent world view" but also misstate history to try to back it up. Problem seems to be on terms. If his history is bad, the "coherence" falls apart? Or, does it just mean he has a coherent world view but it's not really backed up by history?

Or, maybe calling it an "ethos" works better? See also, a recent post on Alito.

Yeah, I was trying to say that a truly "coherent" world view has to firmly grounded in fact. To me, if someone needs to mis-state the past in order to maintain coherence, then it's just ideology. You're probably right that ideology can constitute a "coherent world view" in some sense of that phrase.

Thanks. Sometimes, these debates fall on an understanding of terms that reasonably can be interpreted in different ways.

Mark, I think it's coherent (I don't consider that high praise) in that thinking that original understandings of the text should control over things like legislative intent, function, common law reasoning, etc. But I also think it's flat wrong both as a theory of how best to interpret the constitution (it'd be disastrous for one thing, his version seems to be an 'original expected applications' type of original ism which I think JB and others have refuted, etc) and I think he also gets his history wrong to boot.

Append 'and that's at least a coherent view, in theory, of interpreting law' to my first sentence.

Yeah, the *theory* is coherent (wrong, but coherent) taken on its own. My point was that if theory doesn't match with facts, that makes the theory "incoherent" in a different sense.

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