October 26, 2006

Who's your least favorite Supreme Court Justice?

Well, the poll to choose your favorite Supreme Court Justice is over, and -- of course! -- Scalia won. He won by a lot. He inspires people to be fans. He embodies a distinct position. Whether you want that in a judge is a separate question. Coming in last is Alito. Who would vote for Alito when there's Scalia? Just people who like their judges earnest and nondescript. They may be quite right!

Anyway, that's so last week. The new poll is for least favorite Supreme Court Justice. Go over there and vote, then come back and read the rest of this post. I don't want to bias you with what I'm about to say.

Okay. Welcome back. Now, let me say it: Scalia should win this poll too, and for exactly the same reason he won the first one! I expect Kennedy to get a lot of votes, since he's a big source of frustration for a lot of people. Pick a side! Quit hogging the middle! Power monger! That's not my opinion. The italics indicate the voice of some imaginary person I'm just making up for your amusement.

Now, I'll look at the poll results. Oh, should I vote? Sorry, I can't. I have a love/hate relationship with the whole cast of characters. I was able to pick my favorite. (And why did none of you try to guess which one it is? Is it too obvious?) But I'm not going to single out one person to pick on.

Ouch. We have a clear leader at this point. (Spoiler alert!) It's Thomas. Why is it Thomas and not Scalia? My theory: He doesn't put himself in front of the camera and humanize himself. Or is it racism? Scalia and Thomas together get over half the votes. Conservatism makes people mad, I think.

81 comments:

Salamandyr said...

Right now, Thomas is winning this one, with Scalia a far second. Which makes sense when you think about it, since while the Left disagrees with Scalia, they feel betrayed by Thomas. Kind of the way the right tends to hate Souter more than, say, Ginsberg (though not exactly, Thomas never pretended to be conservative).

The Exalted said...

betrayed? thomas was always a right wing zealot, there is zero sense of betrayal here.

Edward said...

Ann: Conservatism makes people mad?

Scalia is the one who seems mad all the time.

Those of us who disagree with him feel more pity for the man than anger. I know I do.

Maybe what you mean is that an obsession with constitutional originalism drives people with this obsession crazy and makes them angry all the time.

Yes, that must be what you meant, and thus you would be quite correct.

Henry said...

I'm not surprised that Thomas is getting the worst of it. After the Anita Hill imbroglio, the news media declared open season on his character. Normally, a quiet, studious justice would get some respect, but not after that. I can still remember the headline "The Youngest, Cruelest Justice" attached to an newspaper article about his first years on the court.

Richard Dolan said...

The way this poll is working, it's really a kind of mirror -- who is the most/least like me in terms of the results his/her opinions generate? So, yes, I suppose the strongest personality projecting the clearest "position" ought to come out first in both directions. But it's a pretty pathetic exercise, even for an Internet poll.

It would have been a more interesting exercise, and less of a mirror, if the poll asked about some specific aspect of the justices' work: who is the best writer, who is the most succinct, the most careful in analyzing precedent, etc. That would require some familiarity with their work product, and some thinking as well. Oh, well.

Mark said...

First, I am not the same Mark who posted earlier in the thread. I voted for Thomas as the least favorite Justice. Thomas won over Scalia in this category because Scalia, in contrast to Thomas, does not appear to believe in all-powerful Executive (see his dissent in Hamdan). Thomas, OTOH, is willing to give the Executive unlimited deference.

Ann Althouse said...

Mark: Thomas and Scalia joined each other's dissenting opinions in Hamdan.

Freder Frederson said...

It is not racism. It is because Thomas is an appallingly bad human being. Look at any of his opinions when the question of cruel and unusual punishment comes up. Is there anything that he has ever found to be cruel and unusual? If Loving v. Virginia were presented to him today I am sure he would decide in favor of Virginia and turn himself in for violating the law.

Scalia on the other hand I feel sorry for. I truly think he is suffering from some kind of dementia. He reminds me of Uncle Leo from Seinfeld. He has become that slightly crazy older relative who says and does really offensive things at family gatherings but everyone knows means know harm because he just "isn't quite right anymore". Unfortunately, such people shouldn't be Supreme Court Justices.

I never agreed with Scalia's judicial philosophy. But at least he used to be rational, consistent, reasonable and respectful of his colleagues. In recent years, however, he has become more and more strident, obnoxious, combative, and irrational. In some of his public appearances his behavior has been outright inappropriate and bizarre. I really think that he is losing control of his mental facilities.

Simon said...

It's racism, pure and simple. Justice Scalia is a conservative, and that gets him a lot of anger from liberals, but Justice Thomas is black, and liberals simply cannot get over the fact that a black man could be anything other than a liberal. Simply put, they never expected allegiance from Scalia. So while they don't hate Thomas' jurisprudence any more than Scalia's, they add to that hatred an abiding anger that a black man could write those opinions. Attempting to resolve this cognitive dissonance also lies behind the constant liberal attempts to paint Thomas as being dumb, and accusing his clerks of doing all his work. Liberals would rather believe that a black man is stupid and easily-manipulated than that he is genuinely smart and conservative.


In any event, I vote for Justice Ginsburg. The fact is that I disagree with Justice Souter most of the time, but I always enjoy reading his opinions; I disagree with Justice Breyer most of the time, but I have a great deal of respect for his intellect and his willingness to engage in debate (something I admire in Scalia, too; to some extent, I agree with Edward's comment the other day that the Justices should be making a better job of communicating with the people, and Breyer does this very well). Justice Stevens has been hugely influential and very succesfull in building alliances that have kept the court's fingers in all sorts of pies that it should not have them in. On the other hand, I agree with Justice Kennedy in some cases, but I am faintly nauseated by our continuing need to rely on this vacuous intellectual nonentity's vote, and horrified by the prospect that Constitutional law turns on his handwringing inability to form a consistent jurisprudence until the next retirement of a liberal justice during a conservative presidency. But Ginsburg comes out on top; I find myself almost consistently at odds with her jurisprudence and her view of society, so she must surely top my list of "worst Supreme Court justices." I had to go back and read U.S. v. Virginia again yesterday to make sure I was making the right point about the same sex schools in a thread here, and it's just overwhelming that she is THE worst member of the present court.

Freder Frederson said...

Thomas and Scalia joined each other's dissenting opinions in Hamdan.

Didn't Thomas write a separate, single, dissenting opinion basically stating that the president had the sole power to judge Hamdan?

Mark said...
This comment has been removed by a blog administrator.
Mark said...

Ann: I am sorry; I meant Hamdi case in 2004. Scalia wrote a dissent, joined by Stevens, where he argued that the Executive has no constitutional right to detain a US citizen and hold him indefinitely with no habeas review as an enemy combatant. Thomas, OTOH, took the exact opposite view.

Mark said...

Simon:

Your allegation of racism is ridiculous, at least as it applies to me (who picked Thomas over Scalia). I could care less about the race of any of the Justices. For the record, on balance, I oppose affirmative action programs as I believe they achieved their role. I am more than sure that for the vast majority of moderates/liberates who don't like Thomas, his race is a non-issue.

Henry said...

Correction: I just googled "The Youngest Cruelest Justice" and it is a 1992 New York Times Editorial about Thomas' dissent in Hudson v. McMillian. The editorial is behind Times Select, but if I remember rightly, the editorial asserts that Thomas betrayed his background with his vote.

Simon said...

Mark,
You presumably mean Hamdi rather than Hamdan. It was the former in which Scalia and Thomas took opposite positions on the power of the President to detain U.S. citizens.

Mark said...

Simon: yes, I meant Hamdi. I already mentioned my mistake in an earlier post.

Simon said...

Henry,
Justice Thomas has actually made remarks on his treatment after McMillian. Thomas said:

"One opinion that is trotted out for propaganda, for the propaganda parade, is my dissent in Hudson vs. McMillian. The conclusion reached by the long arms of the critics is that I supported the beating of prisoners in that case. Well, one must either be illiterate or fraught with malice to reach that conclusion.

"Though one can disagree with my dissent, and certainly the majority of the court disagreed, no honest reading can reach such a conclusion. Indeed, we took the case to decide the quite narrow issue, whether a prisoner's rights were violated under the "cruel and unusual punishment" clause of the Eighth Amendment as a result of a single incident of force by the prison guards which did not cause a significant injury.

"In the first section of my dissent, I stated the following: 'In my view, a use of force that causes only insignificant harm to a prisoner may be immoral; it may be tortuous; it may be criminal, and it may even be remediable under other provisions of the Federal Constitution. But it is not cruel and unusual punishment.'

"Obviously, beating prisoners is bad. But we did not take the case to answer this larger moral question or a larger legal question of remedies under other statutes or provisions of the Constitution. How one can extrapolate these larger conclusions from the narrow question before the court is beyond me, unless, of course, there's a special segregated mode of analysis
."

Gerry said...

"Who would vote for Alito when there's Scalia? Just people who like their judges earnest and nondescript."

I did, and I would add "consistent" to the list of attributes.

Simon said...

Mark,
Sorry, we cross-posted re Hamdi. :)

Goesh said...

Ruth, mostly because she reminds me of a prune and I say so at the risk of being called an appallingly bad human being. High Handed Clarence Thomas gets slapped around in an impromptu poll for tightly squeezing some black letter Law so I can take my licks for calling Ruth a prune and being a tax payer. Simon says correctly. Liberals are still wetting themselves over a Black man being a Conservative. How it galls them and how dare him! How could he forget the shackles and whip and cotton picking for ol' WASP masta? ha ha!

Internet Ronin said...

Ann - No, your favorite isn't completely obvious to me. If we guess, will you say who is your favorite?

SteveR said...

Souter--just because he's Souter, I know its not his fault he got on the court, but I only had nine choices.

Jeremy said...

Mark,
It may not be a race issue for you, but isn't it a little too convenient that the only ethinc minority on the court gets voted as least favorite? Clearly this indicitive that A LOT of people don't like black conservatives.

Now. Of course, you may be right, and the race thing is hooey. I suspect you are right. But I think it's good for liberals/the left/whatever to feel the same frustration that conservatives feel when they're baselessly accused of racism, a la, the Harold Ford Jr. ad from yesterday.

Sloanasaurus said...

My guess is that Kennedy is Althouse's current favorite.

He is pragmatic and Althouse is the pragmatic type...

dreamingmonkey said...

Hardly a baseless accusation. I think lots of people on the left go after Thomas extra-hard beause he's black. They feel especially betrayed because he's not the next Thurgood Marshall. And wasn't it kind of racist to put him on the court in the first place, a black justice to replace a black justice?

Henry said...

My guesses:

Roberts (favorite) - He can write.
Souter (least favorite) - Too wordy.

Internet Ronin said...

My guess is that Henry is at least half right ;-)

Ann Althouse said...

"Thomas is an appallingly bad human being"

That is a ridiculous thing to believe. The idea that a judge likes everything he doesn't find a law against is truly ignorant.

Mathew said...

I think Ann's favorite is Roberts. As mentioned here before, she really digs his writing and appreciates the succinct manner in which he presents his well-reasoned (in her view, apparently) arguments.

Freder Frederson said...

It may not be a race issue for you, but isn't it a little too convenient that the only ethinc minority on the court gets voted as least favorite?

What, don't Jews and Italians count as "ethnic minorities" anymore? What ever happened to good ol' kike and dago bigotry? Have we gotten over that? Seems like some Italian-American group is always concerned about the negative stereotypes in the Sopranos.

Henry said...

I'm encouraging Ann to embrace a least favorite.

SteveR said...

I think its going to take more than encouragement.

Freder Frederson said...

That is a ridiculous thing to believe. The idea that a judge likes everything he doesn't find a law against is truly ignorant.

It is my opinion that a person living in the late twentieth who thinks that being strapped to a pole for twelve hours in the summer in Alabama or Mississippi (I can't remember which state it was) isn't cruel and unusual punishment on its face is an appallingly bad human being. Clarence Thomas found such behavior by such prison officials as not necessarily being cruel and unusual punishment. So I would say he is an appallingly bad person.

Sorry if I judge people more harshly than you.

Likewise, I would catergorize anyone who claims waterboarding as not being torture as appallingly bad people (this apparently includes the president, the vice president and a bunch of other administration officials and some commentors on this site).

dreamingmonkey said...

What, don't Jews and Italians count as "ethnic minorities" anymore? What ever happened to good ol' kike and dago bigotry? Have we gotten over that? Seems like some Italian-American group is always concerned about the negative stereotypes in the Sopranos.

Not in law. There are lots of Jewish and Italian-American lawyers, far fewer black lawyers. I work in a large firm and it is full of Jewish lawyers. However, there are probably more black people working in our cafeteria than as attorneys. Which is probably not that comfortable for the few black attorneys we do have.

Lots of people I went to law school used to complain about Thomas by saying "How can he be against affirmative action?? He benefitted from affirmative action!" I don't know whether he did or not, but I think the argument itself demonstrates one problem with affirmative action.

Simon said...

Freder Frederson said...
"It is my opinion that a person living in the late twentieth who thinks that being strapped to a pole for twelve hours in the summer in Alabama or Mississippi ... isn't cruel and unusual punishment on its face is an appallingly bad human being."

That is all well and good, but the point that Ann was making is that you are trying to infer Thomas' normative view from his opinions as to what the Constitution requires. If you happen to believe that the question in an eighth amendment inquiry is "what does a person living in the late 20th century think is cruel and unusual," then that's one thing, and you might have a case; but if you think that the meaning of the eighth amendment turns on a wholly different question - "what did a reasonable person in 1791 think was cruel or unusual" (or, in this case, a reasonable person in 1868) - that's a very different matter.

But either way, you're still wrong, because again, you can't seem to wrap that tiny brain of yours around this very simple point: as a judge, your job is to conclude what the law says, not what you think it should say. No ruling that any judge can issue that is tethered to what the lawsays - even if you disagree with it - makes that judge an "appalling bad human being." They may be a bad judge, but it says nothing about their character. You evidently believe that strapping someone to a pole for twelve hours in the summer is cruel and unusual punishment, but that view is far from universally shared today, and certainly wasn't in 1791.

Zeb Quinn said...

Oh the tortured logic the Philistines will abide as they indulge and wallow in their vitriol and rank hatreds.

Gerry said...

Ann,

Completely off topic, but I loved reading this and it struck me as the sort of thing you might like as well.

Cheers!

Mark said...

Simon:

While I usually disagree with you, you generally seem to argue in a civilized manner and advance reasonable, if mistaken, arguments. So, in your reply to Frederson, why do you need to stoop to references such as "tiny brain of yours"? It certainly does not help you to convince anyone not already in agreement with you.

On the substance, while I may not necessarily agree with Frederson, I think that his position is perfectly reasonable: he thinks that if someone does not believe that in the 20th century the particular conduct in question violates the Eighth Amendment, this makes him a bad person. As I said, I may not agree with it position, but it is far from being a ridiculous one. For instance, if Thomas felt that the Eighth Amendment did not forbid execution by hanging of seven-year-olds, I believe that many people would conclude he's a bad person.

Anon Y. Mous said...

After comparing him to "Hitler" and characterizing him as an "Uncle Tom," a vocal group of members of Hawaii's American Civil Liberties Union convinced their board to reject an invitation for Supreme Court Justice Clarence Thomas to participate in an upcoming conference.

http://www.foxnews.com/story/0,2933,28108,00.html

No, I'm sure race has nothing to do with it.

Freder Frederson said...

No ruling that any judge can issue that is tethered to what the lawsays - even if you disagree with it - makes that judge an "appalling bad human being.

Did I mention that I also think that people (and judges) who think that our standards of behavior and what is or is not cruel and unusual punishment should be judged by the standards of treatment in 1791 (or even 1868) are appallingly bad people. Their judicial philosophy is dishonest and ahistorical. It is also silly. Does that mean the 2nd amendment is limited only to "arms" as they were understood in 1791 (i.e., muzzle loading, single shot flint-lock muskets and pistols)?

RogerA said...

Is it important to know what a judge believes about society and larger questions of morality? or is it only important that he or she sets whatever beliefs they have aside and rule solely on the merits of the case before them--or is that simply asking too much of any human being? Can an appallingly bad human being be a good judge? (all meant to be serious questions)

JohnK said...

Thomas is a black man who wondered off the liberal plantation and liberals hate his guts for it. Thomas is no more conservative or controversial than Rehnquist or Scalia, but liberals hate Thomas and hurl one personal insult after another at Thomas. Why? Because in their heart of hearts liberals more racist than a plantation overseer. To liberals black people are not human beings to be taken on their own terms and entitled to their own opinions. Instead, black people are something less than human beings. They are children and victims to be protected and defended and instructed and most importantly to be instructed and to understand and remain their place as charges in liberal care. Most of all black people are never to question what their liberal masters tell them. Why do liberals hate Thomas so much? Because there is nothing a racist hates more than an uppity black man.

JohnK said...

"For instance, if Thomas felt that the Eighth Amendment did not forbid execution by hanging of seven-year-olds, I believe that many people would conclude he's a bad person."

I would say that many people would be morons. There is a huge difference between advocating a position and believing that the Constitution prohibits something. The people who want to hang the 8 year olds may be bad people. Someone who reads the Constitution as written and concludes that there is nothing in it that prohibits a particularly stupid or immoral act is not necessarily endorsing that act. The problem is with the people who are or perhaps with the Constitution, not with the judge who is interpreting the Constitution.

Either you and Frederson don't understand the distinction between judge and legislature or just think any judge who doesn't do what you like, especially a BLACK one, is a bad person.

Mark said...

Johnk:

Care to provide any support for your "thoughts"?

JohnK said...

Mark,

Yes. Scalia holds much more conservative views and more objectionable views to liberals than Thomas, yet is never the subject of the insults that Thomas is. Steele runs for Senate in Maryland and is called and Uncle Tom and an Oreo by his Dem opponents. Condi Rice is routinely portrayed with big lips and in the most racist and insulting manner imaginable by liberal cartoonists. Few people in America receive the kind of abuse that conservative blacks receive. Why? My theory is is that liberals are racist and can't accept a strong black person who doesn't think they way they do. I am open to other theories but as far as I am concerned the burden is on the ones throwing racial epitaphs and reserving special scorn for black people to show me why they are not racists.

El Presidente said...

Freder, Mark and Henry:

Are those kettle drums I hear?

Come on admit it the big black man scares you and you hate the fact that his wife is white. And don't try that "I didn't know his wife was white" defense.

Mark said...
This comment has been removed by a blog administrator.
Simon said...

Mark,
Fair point. I will try to dial it back.

"On the substance, while I may not necessarily agree with Frederson, I think that his position is perfectly reasonable: he thinks that if someone does not believe that in the 20th century the particular conduct in question violates the Eighth Amendment, this makes him a bad person. As I said, I may not agree with it position, but it is far from being a ridiculous one. For instance, if Thomas felt that the Eighth Amendment did not forbid execution by hanging of seven-year-olds, I believe that many people would conclude he's a bad person.

Well, the problem is that his position is not reasonable, because it exposes his apparent incapacity to grasp the job of a judge. Even for those who believe that the appropriate test for the eighth amendment is the Trop test (it "must draw its meaning from the evolving standards of decency" of society), then the inquiry turns on whether society's standards of decency would hold particular conduct to violate the Eighth Amendment, not whether the Judge's personal conception of decency militates against it. It is a reasonable (although I think mistaken) view that a judge to apply the Trop test instead of Scalia's absolutism (itself a position I am skeptical of), but it is certainly not a reasonable position to say that any judge who disagrees with Freder's moral take on a given punitive measure is a bad person.

Or, to address your other example -- the common law set the age of criminal responsibility at 12, IIRC, so it is accurate to say that, if Thomas concluded that the Eighth Amendment did not forbid executing a seven year old, then he would be wrong, but it would not make him a bad person. Now, if, on the other hand, Thomas believed that executing seven year olds was a good idea, if it were his normative preference, then you'd be right to label him a bad person. But what gets me so steamed about someone like Freder is that he seems genuinely incapable of grasping what it is that a judge does in our system of government.

For all Freder knows, Justice Thomas completely agrees with him that chaining someone to a pole for a few hours is cruel and unusual, but it isn't Justice Thomas' job to say "I think this punishment is reprehensible," it's his job to faithfully interpret the Constitution. And this he has done, arguably, with even less concern of the consequences than any other Justice, including Scalia. If there is no evidence that it was considered cruel and unusual in 1791, 1868 or even today, then neither Justice Thomas nor any other judge gets to say "this is cruel and unusual, because I say so," which is what Freder would have him do.

Mark said...

JohnK:

Next time you write, please try to use your analyical skills, if you have them. Had you applied them, you would see that it is possible for many people to believe (without being morons) that one may be a bad person for reading the constitution in un utterly unreasonable way which allows the heinous conduct. What the consititution says depends on who's interpreting it. I.e., Scalia says it means one thing; Stevens says it means something else, Kennedy says it means none of the above. Many people believe that one's personal beliefs shape the way someone interprets the constitution. Whether it is true or not, I do not know. Although I note that many conservatives often complain that liberals inject their personal views in the interpretation of laws and Constitution.

Since it is reasonable for many people to believe that judges' own views shape the way they interpret the Constitution, people may conclude that by misinterpreting the constitution, a judge MAY be a bad person. Please engage your analytical skills to notice that I do not advocate the view that Thomas IS a bad person, I am just pointing out how it is possible to view somebody as a bad person for misreading the constitution.

Freder Frederson said...

Yes. Scalia holds much more conservative views and more objectionable views to liberals than Thomas, yet is never the subject of the insults that Thomas is.

Provide one citation where Scalia has been more conservative than Thomas. This assertion is flatly untrue. Thomas is by far the most conservative member of the court, especially when it comes to human rights issues and the power of the president. Thomas, almost without fail, rules in favor of the state or the power of the executive.

Mark said...

Simon:

Good post and good arguments. However, again, you are missing that it is reasonable for people to believe that a judge's own moral views significantly influence his jurisprudence. Now, most judges will deny it of course, be they liberals or conservatives. But again, I think that given the fairly predictable vote patterns of liberal and conservative judges, it is reasonable to think that some judges allow their personal preferences to shape their jurisprudence. If one believes it, then it is not a stretch to conclude that, for example, if Thomas believes that executing 7 year olds is not prohibited by Constitution, he is a bad person.
Taking this position does not require a complete misunderstanding of a role of a judge; it simply requires a belief that judges allow their personal preferences to influence the outcome.

Again, I do not believe in this position, and overall agree with your view of judges; however, I can perfectly understand Frederson's position.

Simon said...

Freder Frederson said...
"Provide one citation where Scalia has been more conservative than Thomas."

Define "conservative" for the purposes of this discussion. Since you liberals think that conservatives are against free speech, I suppose that citing McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) would put you in a hell of a bind: either concede that Scalia's position in that case is not more conservative than Thomas', and explain why, or concede the point broken.

Simon said...

Come to think of it, Freder, perhaps you can explain to us why Justice Thomas' position in

National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967; 125 S. Ct. 2688 (2005) is "more conservative" than Scalia's dissent? What is the conservative position on whether the FCC's "conclusion that broadband cable modem companies
are exempt from mandatory common-carrier regulation is a lawful construction of the Communications Act under Chevron and the Administrative Procedure Act"?

Do you want to consider Granholm and Raich under the same rubric, or do you want to save yourself the trouble and concede the point?

Anon Y. Mous said...

Thomas, almost without fail, rules in favor of the state or the power of the executive.

http://www.law.cornell.edu/supct/html/03-1454.ZD1.html

Freder Frederson said...

Come on admit it the big black man scares you and you hate the fact that his wife is white.

I'll admit the big black man scares me, not because he is big, black, a man, or because he is married to a white woman, but simply because he and his reactionary views are on the Supreme Court. I used to be ashamed that he was an Episcopalean, but apparently he has converted to Catholicism.

So I am not allowed to dislike someone or disagree with them because they are conservative if they are black? Isn't that what Ann Coulter was complaining about with the "Jersey Girls". "Oh, the liberals put up these people we're not allowed to criticize". Now you're saying, "if you criticize black conservatives, you are racist".

Does that mean conservatives aren't allowed to criticize black liberals. Or is that okay, because you are criticizing them because they are liberal, not black?

Anon Y. Mous said...

Also, Kelo.

http://www.law.cornell.edu/supct/html/04-108.ZD1.html

Seven Machos said...

I don't like Kennedy. He is wishy-washy and overly pragmatic. Let the legislatures be pragmatic. Dealing with the structure of the law and what is ultimately structurally allowed is not an instance when pragmatism serves society.

I saw Ginsburg speak once. She is a lifeless nerd.

Gerry said...

Anon, excellent.

Anon Y. Mous said...

Or Adarand:

http://www.law.cornell.edu/supct/html/93-1841.ZC1.html

JohnK said...

It is not the fact that Thomas is criticized. He is a Supreme Court Justice and people ought to scrutinize his decisions. It is the way in which he is criticized. How many other Supreme Court justices have ever been refered to as stupid? Harry Reid called Thomas stupid and an embarassment as a judge. No other judge liberal or conservative, great or average gets that kind of treatment. Why? No other justice is black and conservative.

Henry said...

El Presidente -- I think you misread my position.

Mark the Pundit said...

Actually, this could be a rule of thumb:

Those people who found the Harold Ford ad racist are probably the ones who voted Clarence Thomas as the Justice they hate the most.

Coincidence. Not a chance.

Gerry said...

"Does that mean conservatives aren't allowed to criticize black liberals"

God, I hope not. I think Obama is an empty suit and media creation.

Worlds better than the cynicism and corruption of Jesse Jackson and Al Sharpton, though.

Uh oh, a pattern! Gerry is slamming blacks! Except that Thomas is my second favorite Justice, and I am rooting big-time for Michael Steele, would love to see Sec. State Rice make a run for the White House (although I might support someone else in the primary), think Donovan McNabb is classy and a lot of fun to watch, and even begrudgingly think that Harold Ford, Jr. would be better than 90% of the Democrats already in the Senate.

dreamingmonkey said...

Anon, could you please explain how Raich supports your position? It seems to me that Thomas is (a) opining in favor of the state against the federal government, which is the traditionally conservative position, and (b) restricting the powers of Congress (not the executive), which is also a traditionally conservative position. The case doesn't involve the executive at all. So it seems to me that it supports Feder's assertion that Thomas votes more conservatively than Scalia???? Granted, it's only one case, just don't understand why you cited it

Ann Althouse said...

Henry: Thanks for the tip about that old NYT editorial, "Youngest, Cruelest Justice." It comes after a death penalty decision and ends:

"The Thomas dissent would be alarming coming from any justice. Coming from him, it rings also with crashing disappointment.

"He is, for one thing, the youngest Justice. He might well serve until the year 2030 or beyond. Although his voting record now is identical only to that of Justice Scalia, he could attract enough support from future appointees to move the Court still further to the right.

"A second disappointment concerns hope. Justice Thomas rose from poverty and discrimination in Pin Point, Ga., and his nomination won support from prominent people sure he would bring to the Court the understanding bred of hardship. Indeed, he testified poignantly about watching busloads of prisoners from his window. 'I say to myself almost every day, there but for the grace of God go I,' he told senators eager to believe him."

To be fair, that is all framed in terms of poverty.

Lycurgus said...

Some of this stuff with Clarence Thomas is little more than urban legend. If you actually read his dissent in Hudson, you'll find it well reasoned and persuasive -- which is not to say that everyone will be persuaded to his point of view, but it is a well-stated and thoughtful view. Essentially, he's saying that the majority view serves to "constitutionalize" ordinary torts -- in this case, battery. Is that really the way the constitution should be interpreted? Who knows why the plaintiffs didn't plead the usual excessive force due process claim, but that failure shouldn't lead to doing a cut and paste job on the 8th amendment in order to provide a remedy for an injury that otherwise deserves a remedy

Anon Y. Mous said...

dreamingmonkey asks:

"Anon, could you please explain how Raich supports your position?"

Perhaps I misunderstood his meaning, but when Freder Frederson threw down the guantlet:

"Provide one citation where Scalia has been more conservative than Thomas. This assertion is flatly untrue. Thomas is by far the most conservative member of the court, especially when it comes to human rights issues and the power of the president. Thomas, almost without fail, rules in favor of the state or the power of the executive." ,

I took 'state' to mean nation state, not the individual state governments.

Revenant said...

Or is it racism

Maybe. Probably some people still believe that whole Anita Hill thing too.

Given that he's basically a politer, quieter, and slightly less extreme version of Scalia, it seems unlikely that there could be a rational reason for disliking him the most.

Cedarford said...

I see with Roberts posting at less than 1% of the "most disliked", that the buckets of slime that NARAL, attack dog Schumer, Spector's idiodic pet obsessions, Leahy, Feingold, and Kennedy just slid right off the Teflon Justice with nary a mark. Yes, he's "new", and hasn't been a deciding vote on some controversal decision, but I see Teflon..

It would have been interesting to have held this poll back when the The Oracle of the Court, as her worshipful media lapdogs thought of her, had still been in business. I found O'Connor tremendously overrated, and still hope that Scalia's scathing dissents of her vapid, opaque, personally biased opinions helped drive her into retirement. I think a good poll would have shocked the media lapdogs on O'Connor's prseumed "super-popularity" as much as a Republican poll on McCain would shock them.

On Freder and others saying Thomas betraying "his own kind" (all blacks are criminals???) and being despicable because he isn't a criminal-coddler.

Thomas - 'In my view, a use of force that causes only insignificant harm to a prisoner may be immoral; it may be tortuous; it may be criminal, and it may even be remediable under other provisions of the Federal Constitution. But it is not cruel and unusual punishment.

And we may have to return to corporal punishment in prisons. The breakdown in discipline in our prisons - thanks to court meddling - endangers guards and prisoners. In the rest of the world, even many of the vaunted Euro-democracies, pain compliance and consequence is part of the package. The Euroweenie hysteria about Abu Ghraib nonwithstanding - they cave to their prison guard and police unions on prisoner discipline matters. The fate of a terrorist who throws a "body excreta cocktail" on a French guard? The beating of his life. 2nd time? A worse beating. 3rd time? The prisoner is held to be insane and kept in special cells segregated from others. In Gitmo, guards are attacked daily. In a Chinese or Japanese prison - would this be allowed?

No.

So maybe it is time to go back to allowing prisons to be authorized to employ use of force in a manner that does not cause significant harm, including a good beating for attacking a guard, raping a prisoner. And for the terrorists, a day sitting in a vat of pig excrement if they throw their own excreta on guards..

Not cruel and unusual. Just desserts. And the courts should recognize they are too involved in matters of prioner and enemy rights. That aside from matters of innocence and guilt relating to due process, they should defer to the executive and legislatures being the ones who set up what regulations are employed in the justice/enemy detainee arena.

stealthlawprof said...

I am with Gerry. I voted for Alito as my favorite -- earnest and consistent (don't know that I buy into nondescript). Of course, winning on consistency is aided by only having one term on the Court.

Least favorite was a tough call. Ginsburg is horrible, but we knew what we were getting. Souter is horrible, but we were told otherwise. The disappointment tips the scales for me -- Souter got my vote for least favorite.

Harkonnendog said...

I don't think liberals hate Thomas because he betrayed them, as much as they hate him because he proves that conservative values are not a result of race. He proves that conservatism is not a code word for racism.

People like Thomas took away one of modern liberals' best weapons. Not so long ago a lib could scream racism at any point in almost any discussion and the conservative had no recourse. Nowadays liberals still try that argument but it doesn't work (well). In Europe that argument STILL wins the day regarding Muslims, though the worm is turning there, too.

The libs saw it coming and that's why they attacked Thomas so ruthlessly, that's why they still attack Rice, and Steele, and every other black conservative. Without that cry of racism liberal ideas can't compete with conservative ideas.

Freeman Hunt said...

Those people who found the Harold Ford ad racist are probably the ones who voted Clarence Thomas as the Justice they hate the most.

Ha. I was just thinking the same thing.

Looks like Thomas isn't alone in people have a special anti-affinity for him. Ginsberg doesn't seem to be faring too well in the poll.

Too Many Jims said...

I see now that Ginsberg is the least favorite justice. So it can't be racism. She must be the least favorite because of anti-semitism or bias against women.

Zeb Quinn said...

Provide one citation where Scalia has been more conservative than Thomas. This assertion is flatly untrue. Thomas is by far the most conservative member of the court, especially when it comes to human rights issues and the power of the president. Thomas, almost without fail, rules in favor of the state or the power of the executive.

Gonzales v. Raich, 545 U.S. 1 (2005).

Rob said...
This comment has been removed by a blog administrator.
Rob said...

I was glad to see the reference to Senator Reid's comments about Justice Thomas's writing ability. Regardless what your opinion is of Justice Thomas's legal views, or Senator Reid's political views, Senator Reid's comments were ignorant. I believe his opinion resulted entirely from his opposition to the substance of Justice Thomas's opinions. Is there anyone here that would argue that his opinions are incompetently written, as opposed to incompetently argued? Professor Althouse, do you think his opinions are well written?
I really lost all respect for Senator Reid when he said that the opinions were "poorly written" and that Justice Thomas was an "embarrassment". I admit I think Justice Thomas is brilliant.

Rob said...

I don't know if Profs. Althouse and Reynolds caused it, but the least favorite standings surely had a huge change. My personal least favorite is now the clear leader.

Revenant said...

"Provide one citation where Scalia has been more conservative than Thomas"

Gonzales v. Raich, 545 U.S. 1 (2005).

Arguably Thomas's position was conservative -- just small-government conservative rather than Scalia's big-government conservatism or the liberals' "enumeration of powers? whassat?" philosophy.

But anyway, he took the more-liberal-than-Scalia position in McIntyre v. Ohio Elections Commission, United States v. Bajakajian, Indianapolis v. Edmond, and Lawrence v. Texas, at least according to Wikipedia.

Ann Althouse said...

Scalia voted on the same side as all the liberals in Raich. Thomas voted on the side of limiting federal power and preserving the legislative role of the states. That's normally considered the conservative side.

Nice to see Thomas get out of the losing position on the vote.

The Exalted said...

JohnK said...
It is not the fact that Thomas is criticized. He is a Supreme Court Justice and people ought to scrutinize his decisions. It is the way in which he is criticized. How many other Supreme Court justices have ever been refered to as stupid? Harry Reid called Thomas stupid and an embarassment as a judge. No other judge liberal or conservative, great or average gets that kind of treatment. Why? No other justice is black and conservative.


its pretty funny that these ridiculously stupid cries of racism are increasingly coming from the right as a knee jerk defense.

thomas is thought to be an idiot because, relative to his exceedingly distinguished peers, he is.

Eric said...

I’m glad I read this post a day or so late. Ginny is clearly losing this, as I suspected, because ATL is a conservative site. AA – I thought you were smarter than the “Scalia will win” theory you put forth in the blog. Ug.

If you randomly sampled constitutional scholars you may reach your predicted result (though I don’t think Nino would win, or, at least, not by as much). On the other hand, Thomas might kill Scalia’s chance of being the least favorite, as his natural law theory makes him appear as unintelligent as President Bush.