September 18, 2012

Clarence Thomas rejects the idea of a judge having a methodology of constitutional interpretation.

Or so it seems. He said:
“You’re supposed to say there’s some angle, some methodology you’re pushing... There’s originalism. There’s textualism. All these useless peripheral debates other than just doing our jobs as best we can.”
Just doing my job as best as I can. That's the modest-selfless-judge methodology... the methodology that dares not call itself a methodology... the methodology embraced by every Supreme Court nominee when he/she comes before the Senate Judiciary Committee ... at least ever since that one guy got borked.

Thomas was interviewed by lawprof Akhil Reed Amar — who has a new book out, "America's Unwritten Constitution: The Precedents and Principles We Live By." I bought that and I recommend it. I got the Kindle version, which allows me to tell you that it contains only 2 mentions of Justice Thomas by name. There's an endnote at 551 about the "contrasting visions" of Brown v. Board of Education "on pervasive display" in the 2007 school integration case Parents Involved in Community Schools v. Seattle School District No. 1, referring to Thomas's "politically conservative reading." And there's a reference, on the same page, to Thomas's questioning whether the Establishment Clause ought to have been seen as applicable to the states through the 14th Amendment (even though he found the 2d Amendment incorporated in the 14th Amendment).

14 comments:

edutcher said...

Knew very little about Justice Thomas until the Professor and Insta did some posts about him.

Like the Romster, the more I hear, the more I like.

Bender said...

Anyone who bothers to take the SLIGHT effort that is needed to learn about the long history of state established churches before the 14th Amendment, with no mention by anybody during drafting or ratification of an intention to disturb them, would understand why Justice Thomas might conclude that incorporating the Establishment Clause is not required by the 14th.

john said...

"Why they were just a lot of people doing the best they could"
And then the lady said that they did it, "pretty up and walking good"


Thomas misses those good old days.

ricpic said...

Thomas says he has no methodology and admits to just doing the best I can, a statement which demonstrates modesty, and the I'm-so-clever-no-one-can-pull-the-wool-over-my-eyes Althouse calls it a false modesty methodology . Everybody's working an angle in Althouseland.

Chip Ahoy said...

Yeah, me too. l even have that book called CLARENCE THOMAS because you were reading it before Kindle, right here in the bookcase, and it doesn't even pop up. Oh wait, that's Egyptian Drawings, but it is up there.

EMD said...

As an aside, it's a shame the term "Clarence Thomas" has become an epithet on par with "Oreo" or "Uncle Tom."

Triangle Man said...

If a liberal said this they would be called "unprincipled". I guess the conservative spin is "modest". Aw, shucks.

Balfegor said...

And there's a reference, on the same page Thomas's questioning whether the Establishment Clause ought to have been seen as applicable to the states through the 14th Amendment (even though he found the 2dAmendment incorporated in the 14th Amendment).

There's an obvious distinction in the language, though -- 2d Amendment says the right "shall not be infringed." 1st says just that "Congress shall make no law." 2d amendment being incorporated against the states -- if incorporation is accepted as valid at all -- fits more easily with the actual text than the 1st, which only purports to restrict Congress, no one else.

Bob_R said...

It would be interesting to hear the full speech. I don't trust the NYT to report anything concerning Thomas truthfully.

I'm not sure if this is what he is saying, but the quote seems to emphasize the disconnect between the analysis of law students and law profs and the actual process of being a judge. I don't think he is denying that he has principals and favorite methods of analysis. But I also don't think he (or anyone) approaches a case by thinking of some nice compact recipe for reaching a conclusion.

allison said...

Having read his memoir, My Grandfather's Son, I came away thinking Thomas is an actual genius. Not the way people in academic throw around "oh, he's so brilliant". But a genius who is so bright he has no idea how much brighter than everyone he is. So he can't seem to recognize why things that are astonishingly easy to him aren't easy for everyone else. For him, law is simple, and those who pontificate reasons and methodologies are just mentally pleasuring themselves rather than working.

eddie willers said...

As an aside, it's a shame the term "Clarence Thomas" has become an epithet on par with "Oreo" or "Uncle Tom."

It was watching the high tech lynching given by Joe Biden and Ted Kennedy during Thomas' nomination hearings that cause THIS lifelong Democrat to leave in disgust.

I then went and read the writings of Conservative Intellectuals that had, somehow, never been discussed during my 16 years of public education.

Rather than wanting to feed Grandma dog food and poison our very air and water, I found arguments so clear, concise and compelling that I vowed never to vote Democrat again.

kcom said...

"I then went and read the writings of Conservative Intellectuals that had, somehow, never been discussed during my 16 years of public education."

But I bet you saw plenty of Che t-shirts.

veni vidi vici said...

Does Marty Redish ever write anything anyone reads anymore? I'm assuming he's still alive. He was my conlaw prof at NU and I liked him a lot. His "Constitution as Political Structure" is a very interesting book.

He's the reason I know who Amar is. Otherwise, well, whatever; it's all academic.

sean said...

I have always thought that applying the Establishment Clause to the states is a bit like what would happen if someone tried to apply the McCarran-Ferguson Act to the states. The results are, to say the least, incoherent.