an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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. Posted
by Rick Pildes [link]
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.
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?
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.
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.