I’m working on a piece about Jan Crawford Greenburg’s new book, so I was interested in this take by John O. McGinnis. I agree that it’s a good book, although obviously to me her credulous acceptance of self-serving arguments made by conservatives is more a bug than a feature. I agree with McGinnis that the idea that Clarence Thomas is simply Antonin Scalia’s sockpuppet–see also Mark Tushnet’s excellent book about the Rehnquist Court–should be put to bed permanently. Really, this would be obvious enough from just reading their opinions, but Greenburg has some interesting material about how on his first term Thomas actually convinced Scalia to adopt a stronger position (but, as McGinnis says, in doing so alienated O’Connor.)
McGinnis does, however, makes a familiar conservative move by claiming that conservative justices aren’t result-oriented while brining up examples that fatally undermine the proposition. McGinnis asserts that “Antonin Scalia and Clarence Thomas…think that constitutional rulings should proceed only from analysis of the text” and refers to “Justice Thomas’s steadfast adherence to the original understanding of the Constitution.” Ironically, however, he cites affirmative action as an example of O’Connor being unprincipled, when of course it is one of the best examples of Scalia and Thomas not being “steadfast” about applying originalist jurisprudence. Affirmative action by state governments can violate the 14th Amendment only by defining its original meaning at such a high level of abstraction that virtually any outcome can be called “originalist.” And the idea that the 5th Amendment was understood at the time of its enactment in 1791 as forbidding all racial classification is simply farcical, and yet both Scalia and Thomas (without even attempting an originalist justification) have held that affirmative action is impermissible even at the federal level. Also telling is the fact that McGinnis seems to use textualism and originalism interchangeably. In fact, they can suggest quite different results (the Scalia/Thomas position on affirmative action is a plausible–though not inevitable– reading of the text, but can’t be squared with an originalism of any meaningful content), leaving Scalia and Thomas a wide range of possible outcomes that can accommodate conservative policy outcomes in most cases.
While I agree that it’s not accurate to claim that judges are simply “politicians in robes,” the claim that disputes on the Supreme Court are purely “legal” is just as much of a half-truth. Affirmative action is an excellent case in point, although oddly conservative scholars sometime cite it as the opposite.