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Revising Thomas


I have been meaning to comment for a while on this very strange Slate article. Ezra raises the most salient objection: it’s absolutely crazy to think that the Republicans, in the current context, would be willing to strike some sort of deal if Democrats would go along with Chief Justice Scalia. Most obviously, this strategy requires that Senate Democrats posses leverage that does not, in fact, exist.  And, of course, Republican legal advisors aren’t stupid enough to think that getting a moderate associate to effectively replace Rehnquist is a good trade.

What I wanted to comment on is that Thompson accepts the conventional view that Scalia, whatever his demerits, is a brilliant jurist who would increase the esteem in which the court is held, while dismissing Thomas as a lightweight by comparison. Interestingly, I’ve been reading Mark Tushnet’s new book on the Rehnquist Court (which is excellent, and particularly recommended to non-specialists interested in getting a general picture of the Court’s history.) Tushnet, provocatively, defends Thomas (not in the sense that he agrees with him but that he’s dismissed in unfair ways) and argues that Scalia is tremendously overrated. In particular, he attacks the idea that Thomas is merely an inferior clone of Scalia. I think he’s got a pretty good case:

What [Thomas] has done on the Court is certainly more interesting and more distinctive than what Scalia has done and, I think, has a greater chance of making an enduring contribution to constitutional law. Basically, anyone whom Ronald Reagan selected for the Supreme Court who had strong ties to the Federalist Society would have done what Scalia did…

Clarence Thomas is different. There was no close competition for the seat he got, but the others who were at least considered–Judges Laurence Silberman and Edith Jones–were more or less standard Federalist Society conservatives. They might have been Scalia’s clones. Not Thomas. (71)

I think this is largely correct. While it hasn’t developed into a coherent jurisprudence, Thomas’s combination of straightforward “originalist” conservatism (with a libertarian tint), Straussian natural law and a soupcon of black nationalism (as Tushnet notes, Thomas remains the first justice to quote W.E.B. DuBois and Frederick Douglass) is certainly idiosyncratic. While I don’t like most of the substantive results, I do think Thomas’s jurisprudence provides evidence of a complex, curious mind and an able judge; some of the particular criticism he has received is unfair. I wouldn’t have voted for him for a seat on the court for philosophical reasons, but he’s a good deal smarter than, for example, Rehnquist’s predecessor. Some of Tushnet’s positive evaluation of Thomas’s abilities rests on his administrative and regulatory decisions, most of which I haven’t read, so I can’t judge that. But I am inclined to agree that much of the derision of Thomas’s abilities is unfair, particularly the attempt to turn him into Scalia’s puppet — which, it must be said, does sometimes reek of racist condescension.

I unequivocally agree with Tushnet’s debunking of the Scalia myth:

Scalia’s concern for rules was his major intellectual contribution to the Rehnquist Court. Beyond that, there’s something conventional accounts don’t say: he’s not as smart as he thinks he is. That’s not to say he’s not smart. He did graduate from Harvard Law School magna cum laude, a distinction not easily achieved even today. Yet after 1994, and for a while before, he was just above the middle of the Court in terms of sheer brainpower. Rehnquist, Stevens, Breyer, Souter, and Ginsburg all could give him a run for his money in that department. Of course, sheer brainpower isn’t the only thing we care about in judges, and it may not be the most important thing. Good judges ought to have good judgment too. On that score, Scalia came up short as well…

Some law professors and even a larger number of journalists praised Scalia for his literary style. That style isn’t as distinctive as it seems at first. Certainly it’s distinctive among Supreme Court justices. But everyone has heard Scalia’s style. It’s the sound bite style of Crossfire, highly quotable, reducing complex issues to simple–and often misleading–phrases. (147, 149)

This is 100% right. Scalia certainly has a formidable command of rhetoric, and with the exception of the more pacific Stevens is the only justice who maintains a distinctive style. As a teacher of constitutional law, Scalia is a godsend; it’s easy to find passages in his opinions that students will grasp and react to. One can’t help but notice, though, that once one boils the rhetorical broth off Scalia’s actual arguments are sometimes reduced to fairly simple propositions (traditions are self-justifying, the fact that the Constitution doesn’t mention sexual orientation per se means it can’t be protected) whose flaws even mediocre students can readily identify. (Conversely, even smart liberal students sometimes have trouble arguing against, say, the second Harlan’s dissents in Warren Court 4th and 5th Amendment cases, and ditto with smart conservative students analyzing Souter or Stevens or Ginsburg.) Thompson also mentions Scalia’s alleged prowess at oral arguments when comparing him to Thomas, which is pretty embarrassing; any serious student of the Court knows this means essentially nothing, and if anything Scalia’s bullying is counterproductive (Tushnet includes several amusing incidents of Rehnquist’s annoyance with Scalia on the bench.) Scalia is obviously an able judge, but he’s also a fairly standard-issue reactionary — even his libertarian streak is hardly unique in post-Goldwater conservatism — and no more able than most of his colleagues. As to the proposition that a Chief Justice Scalia would cause the Court to be held in higher esteem by scholars and the public, I vote an emphatic “no.”

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