Neutral principles and criticisms of Justices Marshall and Thomas

Jami Floyd offers this post about Justice Thomas. Before we start, a brief reminder of neutral principles (see this post for more detail). Generally-speaking, to avoid lapsing into partisanship, one should consider specific situations through the lens of neutral principles: It's not necessarily a problem that a conclusion happens to fit your partisan needs, but it should rest on a principle you would be willing to follow in other situations to which it applies, even situations where it might hurt your interests. (For instance, tea partiers are big on the Constitution but many of them recoiled from Snyder v. Phelps.) Put another way, we must decide this case in this way because it is an instance of a more broader class of cases which are all properly decided in this way. (That's a paraphrase of Golding, Principled Decisionmaking and the Supreme Court, 63 Colum. L. Rev. 35, 40 (1963).)

The biggest problem with Floyd's piece—as with many critiques of Thomas, it seems to me—is its failure to adhere to neutral principles. Her criticisms weigh as heavily on several justices, including Justice Marshall, as they do on Thomas:

• Was Thomas "too green" to be nominated to the Supreme Court after only a year on the court of appeal? If so, then so was Marshall, who hadn't served a day as a judge. The Solicitor General (Marshall's previous billet) is sometimes called the tenth justice, but only rhetorically, which brings us to the winsome Justice Kagan. If Thomas was too green, what on Earth can Floyd think of Kagan?
• Had Thomas "not yet proven himself a jurisprudential thinker of the caliber required for service on the U.S. Supreme Court"? If not, neither had Marshall; being a skilled litigator on the right side of some important cases does not make one a heavy hitter as a jurisprudential thinker. We should also pause to consider the neutrality of the premise: Why would Floyd assert the importance of being a heavy-hitting jurisprude as a criterion in the first place, and would she be willing to apply it to other justices? After all, it doesn't just knock out Marshall; it would almost certainly have excluded liberal lions such as Hugo Black, William Douglas, Earl Warren, and William Brennan from service, a result I am sure she wouldn't accept. Indeed, some of the most lauded liberal justices stubbornly resisted getting lost in the weeds of heavy jurisprudential thinking; Justices Stevens and Souter, I think, regarded themselves as common law judges free of the encumbrances of grand jurisprudential theories.

At bottom, Floyd doesn't like Justice Thomas' jurisprudence. But there seems to be something more. Or rather, there's either something more or the bottom line is inartfully camouflaged. Look at this backhanded insinuation that Thomas hasn't carried his intellectual weight since his appointment:

Conservatives who would suggest that my criticism of Thomas is purely ideological should note that I have no similar criticism of Justice Antonin Scalia. … Not only was Scalia deserving of the post when nominated in 1986, after four years on the D.C. Circuit, but he has more than carried his intellectual weight ever since.

Justice Scalia isn't in the crosshairs here, so the compliments are really designed solely to highlight the contrast being drawn with Thomas. It's therefore not as clear as Floyd would have us believe that her criticisms aren't motivated in large part by ideology. Similarly, we are told that Thomas "clings" to the jurisprudential tag assigned to him, "strict constructionist." Is Thomas a strict constructionist? He doesn't call himself one, and it's hard to imagine how a strict constructionist could join the sovereign immunity cases—Alden, etc. Lay critics—and fans, for that matter—continue to label Scalia as a strict constructionist (an obsolete and faulty dog whistle for "conservative") although he isn't, so I must wonder if the same is true here. And even if Thomas is a strict constructionist, it seems bizarre to refer to someone as "clinging" to their judicial philosophy. No matter how little she might like Black's dissent in Griswold, would Floyd say that he clung staunchly to textualism?

So perhaps there is more here than pure disagreement. If we take Floyd at her word that her criticisms have nothing to do with ideological differences, what are they about? Senator Reid got into this same pickle a few years ago; he made the same rhetorical comparison to Scalia, but when pressed couldn't articulate anything coherent or accurate about why Thomas was more egregious. In Reid's case, it was obvious that he had a a priori opinion of Thomas that wasn't grounded on any real knowledge of the latter's work or that of the court. And what of Floyd? Reid may at least claim the excuse that he was speaking extemporaneously, but Floyd's written piece is presumptively a thought-out expression of her views. Yet the real basis for her difference with Thomas (if it is not in fact about race or ideology) is evasive. It seems to be this: Thomas holds "extrem[e]" views and is "ineffective." But these are strange arguments to make. If Floyd thinks Thomas' views are extreme and/or wrong, why would she want him to be more effective in advancing them? And while one can seriously argue that Thomas is more radical than Scalia, Floyd doesn't seem to have such arguments in mind. I get no sense that Floyd is reflecting concern for, say, Eastern Enterprises v. Apfel, Gonzales v. Raich, or Morse v. Fredrick, cases in which Thomas would go much further than Scalia. Instead, she simply fabricates an easily-disproved soundbite to support her claim that Thomas is too extreme:

While others may prefer to focus on the silence of the judge from the bench, the more salient point is the silence of his pen. Like the late Chief Justice Rehnquist before him, Chief Justice Roberts rarely assigns majority opinions to Thomas. Whether this is because of Thomas’ lack of intellectual heft (as his critics on the far left might like to assume) or because of his staunchly conservative views (my personal opinion) the result is the same: Thomas does not write for the majority very much because he cannot persuade a majority of justices to join him.

In the first instance, Floyd is wrong. (She seem to have uncritically adopted and then seriously distorted a far more modest point made by Mark Tushnet, viz. that for strategic reasons, Thomas got fewer assignments than he might have, see A Court Divided 85-86 (2006).) Chief Justice Rehnquist sought—and Chief Justice Roberts has followed suit—to assign each justice an equal number of majority opinions over the course of the term, see Rehnquist, The Supreme Court 260 (2d ed. 2004), and the numbers bear this out. Last term, OT 2009, the court issued 73 signed opinions for the court, so with nine justices, each should have written about eight. Thomas wrote eight. In OT 2008, the court issued 74 signed opinions for the court, so with nine justices, each should have written about eight. Thomas wrote nine. I could go on, but you get the point. Nor is Thomas assigned only unanimous opinions; for example, Magwood v. Patterson and 14 Penn Plaza v. Pyett were 5-4, and the lopsided 7-2 margin of Washington State Grange perhaps does an injustice to Scalia's dissent. [Update, 3/29/11: And this very term, Thomas writes for a 5-4 majority in Connick v. Thompson.]

Even if she was right, however, it is hard to see how it is Thomas fault that he is unable to persuade eight judges not of his choosing, each with strong views on the law of his position. In his 2006 commencement address at Georgetown, our fearless leader quoted from Justice Frankfurter's address Chief Justices I have Known, 39 Va. L. Ref. 883 (1953): the notion that Chief Justice Taft would soothe the court's troubled was "funny" to Frankfurter: "that Taft would just smile and then Holmes would say, 'Aye, aye, sir,' or Justice Van Devanter would say, 'For ten years I've been disagreeing with Holmes, but now that you've smiled at both of us, why we just love each other.'" And it seems much the same here. Does Floyd suppose that if Thomas would be no more extreme on the issue of abortion than Scalia, and would just smile more sweetly at Justice Ginsburg, that he could persuade her to join him more often in abortion cases? Just yesterday, I was quoting from Minn. GOP v. White: "even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Justices arrive on the Supreme Court with legal views that may not be amenable to being changed—and besides, wasn't one of Floyd's criticisms precisely that he wasn't a judicial thinker of Supreme Court caliber? The two criticisms are incoherent: a judge who has a carefully thought out position is even less likely to be able to "deal" with justices who do not share his or her views.

For all these reasons—the factual errors, the dubious points and insinuations, the ad hoc standard by which she judges Thomas without any indication that she would apply it neutrally—Floyd's piece fails. All that emerges clearly is that Floyd, like Senator Reid, has a strongly negative opinion of Thomas, whether in fact based on race or ideology, and that like Reid, she is uncomfortable just saying so. Instead of bouncing back and forth between various "top ten slams on Clarence Thomas," it would be more honest and more effective to frankly acknowledge the real source of her beef with Thomas—no matter what it is. If it is his extremism, make that point, and make it clearly.

Finally, almost as a postscript, I will add this. There are legitimate criticisms of Justice Thomas. One that I saw recently (sorry, I don't have a link handy) had some bite in it: Thomas' silence at oral argument, the authors argued, denies litigants the opportunity to address his concerns. That is a good criticism; twenty years ago, Judge Easterbrook wrote: "Just as parties may choose the terms of their contract, they may choose the subjects of their litigation. Resolving a case on a ground not presented denies the parties this autonomy and increases the risk that an uninformed opinion will impede rather than promote commerce. It is hard enough to navigate when the court sticks to questions fully ventilated by counsel." Frank Easterbrook, Afterword: On Being a Commercial Court, 65 Chi. Kent L. Rev. 877, 880 (1989), but cf. United States v. Skoien, 587 F.3d 803 (7th Cir. 2010) (en banc) (Sykes, J., dissenting). David Karp has a useful article applying this problem to Thomas, and Thomas himself sometimes recognizes that this can be a problem—see, e.g., Powell v. Nevada, 511 U.S. 79, 87 (1994) (Thomas, J., dissenting), or his brief concurrence in Carhart. I do not propose to resolve the issue, but I do note that critics like Floyd would do well to press on serious, concrete issues like these rather than glamorous rehashings of Anita Hill and amorphous (and, it would seem, disingenuous) worries about whether Thomas is effective enough in advancing his views.