In the January/February issue of the Washington Monthly, attorney Michael O’Donnell has a piece on the differences between judicial conservatives and libertarians. It’s part of a review of two new books on the Supreme Court: Overruled: The Long War for Control of the U.S. Supreme Court, by a senior editor at Reason magazine, Damon Root, and American Justice 2014: Nine Clashing Visions on the Supreme Court by University of Baltimore Professor Garrett Epps.
O’Donnell’s conclusion might be surprising, but he tags Justice Clarence Thomas as the best exemplar of libertarian judicial philosophy now serving on the Court.
The justice whom Root cites most approvingly is Clarence Thomas. Thomas is not strictly a libertarian: he is a reactionary, who wishes to revisit and undo whole swaths of American constitutional law. But he takes the narrowest view of the government’s commerce power; dissented the most forcefully in Kelo; and called for Slaughterhouse to be overruled: libertarian touchstones all. Like libertarians, Thomas thinks little of traditional doctrines like judicial restraint or respect for precedent. And his preoccupation—one might even say fetish—with creating a rigidly principled jurisprudence reveals a methodology that is consistent with, if not identical to, judicial libertarianism. Libertarians may sound modest and reasonable, but the fact that Thomas is their man on the Supreme Court speaks volumes. They are not reasonable. The one consolation is that their extreme views and unwillingness to compromise will prevent them from achieving results. Ask Thomas. He usually dissents alone.
One of the most interesting observations in the article is that “libertarians embrace an activist judiciary; they do not want courts to defer to state and federal laws. Laws mean government, so libertarians want courts to shrink government by striking down laws.”
It’s obviously hard to categorize Justices as either conservative or libertarian, but it is at least illuminating to see which Justices are most pleasing to libertarians.
You can read the whole piece here.
I haven’t read the piece, but to me this just illustrates, again, how stupid Libertarians are.
Thomas was a famously, conspicuously unqualified political appointee with many conspicuous personal issues, who barely got by the Judiciary Subcommittee. Once confirmed, he made a career of being the only justice who never speaks, and his voting record is, what, like 99% the same as Scalia’s? 100%? 96% He’s like Bush reading to the kids in the classroom; he’s a placeholder with no idea what’s going on. His staff writes “his” decisions; combing through them looking for a philosophy is like going through Peggy Noonan’s Reagan speeches trying to figure out what “he” “thought” about the issues.
Every so often he emerges for an interview or whatever and you see how mentally limited he is. His wife works for the Heritage Foundation (so we know where their bread is buttered).
I actually think the public perception of Thomas as Scalia’s parrot is unfair, which is not at all to defend his craziness.
I bought into this until I had to read a lot of their opinions in law school. While Scalia and Thomas often reach the same result, they follow different judicial philosophies; moreover, Thomas is far less likely than Scalia to write opinions that start with a desired outcome and work backwards.
I have a combination of horror/respect for Thomas, because he is very intellectually consistent in his 19th century legal philosophy; I’m generalizing, but he tends to follow the Lockner Era (pre-New Deal) view of the federal government’s power, which would find nearly every piece of legislation as beyond Congress’s powers. This frequently places him in agreement with Scalia, but also sometimes finds him and Ginsberg as the only dissenters, but for completely different reasons.
Scalia’s opinions are often directly contradictory to other opinions he’s written, when a different argument is required to reach the outcome he wants. Thomas’s opinions are usually completely consistent with each other, but stand for a very backwards view of what the government may do that has been rejected by the vast majority of legal scholars and that would outlaw much of what the modern federal government does.
A good example of the difference between Scalia and Thomas is the Supreme Court’s holding that the Violence Against Women Act was beyond Congress’s powers in US v. Morrison, in which both Scalia and Thomas sided with the majority, as compared to Gonzalez v. Reich, where the Supreme Court held that Congress did have the authority to criminalize home-grown marijuana for personal use only. In the latter case, Thomas stuck with his principled yet crazy view of the limits to federal power, and dissented. By contrast, Scalia wrote a tortured opinion, bending over backwards to justify the outcome he wanted by creating a completely arbitrary set of rules to explain how regulation of personal use of marijuana was within Congress’s Commerce Clause power, but not the regulation of violence against women.
Agreed.
Scott Lemieux has detailed that here.
But regarding any of that as actually coming from Thomas seems ridiculous.
All that matters is the vote. Viewing Thomas himself as some kind of judicial philosopher just because he’s got a different staff from Scalia who composes the text along different sophistic lines seems naive to me.
Thomas is like Reagan or George W. Bush: someone cynically selected to play a role. Even Thomas himself (unlike, say, Bush) is refreshingly free of hubris and talks frequently about how he doesn’t belong there and can’t measure up and doesn’t feel worthy. He never speaks on the bench because he’s got nothing to say.
Did you read the Jennifer Senior interview with Scalia a couple of years ago? Such a mundane mind; such limited comprehension; so many base prejudices and naive, closed-minded positions.
It’s like when you watch an interview with a movie star: suddenly the spell is broken and you realize that the impression you’ve always had of the person as some kind of heroic mover-and-shaker is just an illusion.
And Scalia is Learned Hand compared to Thomas. He’s awful, and totally unprincipled and sloppy in his thinking, but at least there’s a mind there. With Thomas you get nothing.
As I said, it’s amazing what you can accomplish when a score of accomplished behind-the-scenes operatives are writing your lines for you.
I can’t speak to whether Thomas’s law clerks do more or less work on his opinions than the law clerks of other Supreme Court Justices. They all use their law clerks, but absent some inside information from a former clerk I would not assume that the fact that Thomas, like all federal judges, has law clerks is evidence that his opinions are not his own.
I would be shocked if anyone on the Supreme Court did not play an active role in drafting their own opinions; particularly dissents, which is where we see Thomas’s judicial philosophy most prominently. I’ve seen no evidence that Thomas’s staff–who he personally hires, and who presumably work for him for only one or two year terms, like most law clerks–are the ones driving his judicial philosophy.
None of this is to say that either Thomas or Scalia are great (or even good) thinkers. But I don’t see the fact that he presents poorly in interviews as evidence that he’s really just a puppet of his staff.
As you say, the vote is ultimately what matters (although that’s not entirely true, given that the reasoning in an opinion can impact future cases, see, e.g., Justice Kennedy’s reasoning in Windsor, which overturned the Defense of Marriage Act, being relied upon by appellate courts to hold that state bans on gay marriage are unconstitutional).
But that was part of my point: the difference in the judicial philosophies of Scalia and Thomas sometimes leads to them voting differently; in some cases, this puts Thomas on the side of progressives, though for totally different reasons.
To bring this back to the OP, Thomas as libertarian makes sense for exactly this reason. Like a libertarian, he will sometimes reach what I see as the correct result (like the example above where he would have held that Congress did not have the power to prohibit marijuana harvesting for personal use where the state permitted it for medicinal purposes), but based on his view that the federal government’s powers are limited, not because he believes that medical marijuana is good policy. So this same philosophy will lead him to horrific results when it comes to economic regulations, or civil rights legislation, etc.
I’m trying to say that Thomas is an extremely unusual example amongst Supreme Court justices (just like Reagan was an extremely unusual case amongst Presidents, although less so) — that he’s uniquely unqualified and ignorant — as evidenced by his thin resume and, most important, by his refusal to open his mouth during any of the court proceedings.
I’m further arguing that the surrounding superstructure of the high Court allows this, just as the mechansims of the White House and the White House Press Corps and the basic inertia and trust built into American society allowed someone like Reagan to appear to function as a legitimate president. (During Iran/Contra, Elizabeth Drew wrote that, “When we are discussing what the President `knew,’ we may be dealing in metaphysics.”) The cynical manipulation of the electoral process and the mechanisms of modern government — press secretaries; speechwriters; TelePrompTers; a cabinet — allowed this all to happen and then to happen again with George W. Bush.
I think whoever persuaded Bush I to nominate Thomas said “He’s not really qualified but he’ll vote the right way; and he’ll get in because he’s a Black conservative” (or whatever metric they were playing for). I remember many people I knew at the time in government and law and journalism were saying, “It’s a j0ke; everyone knows he’s not qualified.” The whole Anita Hill imbroglio (which is a totally different topic and unrelated to his lack of qualifications) revealed his strange views when he started complaining about “a high-tech lynching,” but the real giveaway, as I’m saying, is that he doesn’t speak.
I don’t disagree about the motivations of the people who nominated Thomas.
Frankly, I think he’s more dangerous because I don’t think he’s a stooge, but is rather employing a frightening judicial philosophy that had been dead for a century when he was nominated.
Thomas has been pretty open about his reasons for not speaking during oral arguments: he doesn’t think oral arguments or asking questions of lawyers is helpful. That’s not an uncommon belief among judges, although the current crop on the Supreme Court particularly enjoys interrupting the lawyers, so he stands out in his silence.
I agree that this demonstrates ignorance on his part, but probably not the type you mean. It is that he has such a blinding devotion to his judicial philosophy, that he thinks it is pointless to engage with people who don’t subscribe to it. Thomas has the ignorance/stubbornness of an ideologue. Kind of like a lot of libertarians. But that’s different than someone who stays silent because he doesn’t have independent thoughts. I don’t think the facts support the image of Thomas as a puppet of his staff, or of those who pushed for his nomination to the Supreme Court.
Republicans/conservatives probably wish Thomas was less wedded to his judicial philosophy and would be more like Scalia or Alito, who are more results-oriented. They are far better than Thomas at ensuring the outcome is the one that the Republican Party wants.
(I’m definitely generalizing about Scalia here, who actually is very good, from my perspective as a supporter of civil liberties, on a couple issues that infuriate conservatives: he takes seriously the Fourth Amendment’s prohibition against unreasonable searches and seizures and a criminal defendant’s right to confront his accuser, while being pretty horrible on most everything else.)
I was going to start by saying, If you think Scalia is “pretty good” then there’s not really much to talk about; we’re obviously on different wavelengths. But I concede that there have been one or two (extremely meager) areas where he’s actually arrived at the right answer.
I think the larger gulf between us, conceptually, is that, while we both clearly understand that these Justices are working towards “ensuring the outcome is the one that the Republican Party wants,” you seem to take for granted as an axiomatic belief that there’s more — that there must be some greater underlying judicial “philosophy” at work. The belief that a United States Supreme Court Justice by definition is going to be an academic legal scholar who’s mulling over matters of jurisprudence and applying consistent learned principles to “the law” is one that I just don’t share (any more than I believe that tax cuts for the rich are actually the application of any “economic theory” that anyone should take seriously).
I think these justices are, as you say, ideologues and zealots who are bending the law in the direction that they want it to go, full stop. That’s what they’re there for, as you say — and there isn’t any more to it any more than Sam Brownback is working from some legitimate, established, emperical understanding of budgets and taxes. They know where they want to go, and they go there, and then they spin whatever legalize gets them there (with the help of those staffpeople I keep mentioning). Scalia’s “original intent” position has been demonstrated over and over to be wildly inconsistent and doesn’t hold up under scrutiny. It’s a rhetorical device for justifying what he wants to have happen.
I just don’t see any reason to imbue these people with status as real legal thinkers the way you do. (And the business about how Thomas “he doesn’t think oral arguments or asking questions of lawyers is helpful” is laughable. Of course it’s “helpful” — it’s an intrinsic part of the High Court’s process.)
I’m basically in agreement with where this. I thought you were saying that Thomas was just a puppet of Scalia and/or of his law clerks and/or of the people who pushed his nomination. If I misinterpreted you’re earlier comments, I apologize.
My only points were (a) to highlight the differences between the way Scalia and Thomas apply the law, and how at times this leads Thomas to reach a better result than Scalia, which you don’t seem to disagree with; and (b) to emphasize that I don’t think this paints Thomas in a better light than if he were a puppet; I see him as more dangerous because he has independent thoughts and is employing a particularly bad (even worse than Scalia) judicial philosophy.
To be clear, when I’m saying “judicial philosophy” I’m not trying to imbue any positive value judgment; to me that’s the same thing as a legal ideology. That was probably confusing and poor word choice on my part. I certainly do not see Thomas as a legal scholar; but he is applying a legal theory, its just a mind-numbingly stupid one that has been rejected by legal scholars for a century,
I do think the examples I’ve cited show that Thomas follows his legal ideology more consistently than Scalia. They both know where they want to go; but Thomas is mostly driven by ideology to get there, whereas Scalia is more driven by the outcome. Again, none of this is a defense of Thomas; I was merely critiquing a certain type of criticism of Thomas (that he is Scalia’s puppet), which I think is false for the reasons stated above, and which I also think downplays his dangerousness.
PS: As seabe says, Scalia’s good Fourth Amendment jurisprudence is limited to intrusions on the home, as well as taking DNA samples upon arrests. He is his regular horrible self on stop-and-frisks, auto searches, etc.
Whoops ignore that “where” in my first sentence.
Scalia’s upholding of the fourth amendment cases wet searches and seizures is limited to houses. Where cars are involved he shrivels up and gives the police all the power they want.
I suspect that tells a great deal about where Scalia indulges in those things he would prefer not be found out.
This also helps to provide more evidence that the Supreme Court is one of the main reasons for the dysfunction of our Government. We are a country based upon laws and dependent upon a fair and impartial judicial system. Unfortunately our judges and numerous other personnel in the judicial system are actual political activists.
Those on the RW pursue courses that hinder and tear apart our government.
Yes, and Clarence Thomas is always a voice and vote for the furthest possible “conservative” extremism.
The Roberts Court has ruled our ocean of unchecked firearms to be a constitutional right, and declared more federal laws unconstitutional than any Court before them, from campaign finance laws to the Voting Rights Act. We’ll soon see Roberts’ Repubs gut the subsidies of Obamacare, after gutting the women’s health provisions of Obamacare last year—on the grounds that bosses’ “religious rights” were infringed.
If a law was advocated by lib’ruls, it amazingly turns out uniformly to be unconstitutional. And Clarence is a crucial vote at every turn in magnifying the chaos and unfairness and unprincipled activism, whether he is seen as a “libertarian” or “conservative”–to the extent this is even a meaningful distinction. And why are abortion rights not an expression of “libertarianism” again, Clarence?
An extremely immature thinker who had no actual qualifications for such a position and most definitely not a wise man. Thomas is on the Court because he was manufactured as the movement’s “Black Conservative”. His rigid ideological thinking calls to mind the saying that “a foolish consistency is the hobgoblin of little minds”. “The wrong negro” as Thurgood Marshall so perfectly characterized him.
Let the braindead conservatives, libertarians and conservatarians fight over whose brainchild Clarence is, historians will conclude his legacy will be one of uniform dysfunction and national catastrophe.
While Kelo was evil, and I myself think little of precedent or tradition one of the singularly most stupid self defeating anologies against affirmative action I have ever read have come from Thomas, he is a book or a stooge or both.
Kelo wasn’t evil. It was correctly decided. The takings clause in the Constitution is essential for many publicly supported collective actions at the local, regional, state, and federal level. The use of eminent domain for the benefit of private sector projects is hardly unheard of. It was precisely how GWB and other owners of the Rangers accumulated much wealth.
Kelo only said that voters through specific referendums or those they elect to public office can exercise the power of eminent domain any way they want. Nothing in the Constitution prohibits any governmental subdivision from choosing to declare that eminent domain may not be used for the direct and exclusive benefit of the private sector. No such prohibition existed in New London, CT and the voters chose to elect officials that were totally on board with private sector developments.
I never disputed its legality only its morality. Your example of the rangers is all the more reason it was evil.
If there was a moral component to the Kelo decision, and I disagree that there was, then your position is that Thomas and the minority were on the side of good. And the liberal justices were on the side of evil.
That doesn’t mean that I agree with the decision made by the elected officials of the City of Arlington to build a new publicly funded stadium for the Rangers to play in and acquire more land than was needed through the use of eminent domain that was transferred to the owners of the Rangers. Public funds for a private commercial operation should always be suspect, but in some instances they may be perfectly sound financial investments for a city, etc. to make. Usually they aren’t. When such investments are marginally financially sound, an argument can be made that they are still a local public good. Some residents want to go to professional baseball/football games and other residents want to go to public libraries, museums, and parks. And the ticket price for such games would be prohibitive for residents if the city didn’t build and own the stadium. Unfortunately, cities don’t exert much if any financial constraints on what sports teams owners can make off the teams. WRT to the land that was turned over to the Ranger owners — that was closer to theft and was likely extorted from the city to keep the Rangers in Arlington.
Other than in certain jurisdictions that would never tolerate the tear down of existing structures or converting certain lands to some other use, do you seriously think that there is a single city, etc. in this country where a majority of voters wouldn’t approve the use of eminent domain to acquire land that otherwise couldn’t be secured for the use of a private commercial operation that would generate a significant number of new jobs? I don’t.
It would be better to have those rare situations be subject to a refferendum and otherwise have the default of government not being able to seize property to give to private owners. If youre right, let the people decide on the merits of taking for private use. Things wouldn’t change much in outcome according to you, and the will of the community would be explicit. Make supporters make the argument they’re a local public good. I have zero problem thinking the liberal justices were the bad guys in Kelo.
Especially if you consider the aftermath of the propery (vacant lot). The city supposedly apologized as well.
You’re not getting it. The Kelo decision specifically stated that local land use policies, zoning, and exercising the power of eminent domain are within the jurisdiction of local governments and their electorates. As long as those land use decisions have no impact on other communities, it’s not within enumerated powers of other political subdivisions or the courts to overrule the local decision.
It’s irrelevant that the City of New London, CT didn’t get the expected private development after clearing the land for the developer. The city elected officials made a bad decision in this instance. (No different from the crappy decision that the Bush and Obama admins made wrt Solandra loans.) That happens. The voters can toss them out of office and hire better officials. The voters can also demand a different way of handling such requests in the future. The point is that Kelo held that those in the best position to make such decisions are those in the community.
Perhaps some of the longest-term damage done to the Republic has been through the USSC over the past 225 years.