Thomas: Not Scalia’s Sock Puppet

The Supreme Court held this week that securities underwriting should not be subject to antitrust law. (Try to control your excitement please.) If I understand correctly from contacts who are actual experts in the field, what’s important about this case is not so much the outcome as the dicta, in which the Court rails against the ability of juries to apply antitrust law. Being a Breyer opinion it’s almost entirely a policy argument, and he argues that it is unwise to apply antitrust law to securities because of “the difficulty of drawing a complex, sinuous line separating securities-permitted from securities-forbidden conduct [and] the need for securities-related expertise to draw that line.”

At any rate, of interest to non-specialists is that while the rest of the Court’s current coalition of moderate Democrats, Rockefeller Republicans, and standard-issue Federalist Society reactionaries joined the opinion, Clarence Thomas dissented. Rather than making (dubious) assumptions about that capacities of juries, Thomas actually focused on the statute, noting that “the Securities Act and the Securities Exchange Act contain broad saving clauses that preserve rights and remedies existing outside of the securities laws.” Which, again, demonstrates that claims that Thomas are merely Scalia’s sockpuppet are very, very mistaken. In many respects he’s the most reactionary member of the Court, but he’s also much more consistent and principled than the other conservatives, and he’s not just a pro-business hack. (The work of Souter and Breyer on these recent securities cases, conversely, reminds us that what’s considered a “liberal” on the current Court is rather different than a Warren Court-era liberal.)

Speaking of which, in an example of successful marketing I’ve picked up the new book about Thomas. I’ll have commentary when I’ve read it.