Jeffrey Toobin of The New Yorker recently called Justice Thomas’s silence “downright embarrassing.” But the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision.Pow! That's all you need. Except... Liptak has 2 problems to solve: 1. Clarence Thomas must still be portrayed in a negative light, and the shot at Toobin can't leave Thomas standing there looking good, and 2. Liptak isn't writing a blog post, which could be ideal with a 1-sentence set-up and a 1-sentence zinger, and he's got to generate more material to make this look article-y.
Liptak solves his 2 problems by replaying the old criticism of Thomas that he doesn't have as much respect for stare decisis as the other Justices. He's more willing than the others to reframe constitutional law doctrine to get to what he thinks the Constitution really means. They see more value in leaving existing doctrine as it is.
Of course, no Justice is absolutely set on keeping all the old doctrine, and no Justice, including Thomas, completely disrespects stare decisis. It's a matter of degree and judgment, but Liptak squeezes a column out of it by painting Clarence Thomas as a disrespectful kind of guy. The man laughed at stare decisis:
Here is a good way to get a belly laugh from Justice Clarence Thomas: Suggest to him that the Supreme Court’s decisions should seldom be overruled.Well, that took up a lot of space, the whole first screen of the column Liptak is filling. Dialogue is great for space-filling, because you get all those extra paragraph spaces. And you get all those extra clauses telling us where these words were spoken and who that interlocutor is. The smackdown of Toobin is tucked in the center of the column.
“You are the justice who is most willing to re-examine the court’s precedents,” Judge Diane S. Sykes told him in November, in a public conversation at an annual dinner sponsored by the Federalist Society, the conservative legal group.
Justice Thomas responded with a deadpan statement that the audience could tell was a joke. “That’s because of my affinity for stare decisis,” he said, using the Latin term for “to stand by things decided.” Then he let out a guffaw.
“Stare decisis doesn’t hold much force for you?” Judge Sykes asked.
“Oh, it sure does,” Justice Thomas responded. “But not enough to keep me from going to the Constitution.”
He was still laughing. The audience gave him a standing ovation.
What's all this attention to Thomas laughing at stare decisis? I suspect he was laughing at the predictability of the question. Of course, he knows what they say about him. Liptak tells us that Justice Scalia is in the audience and that Justice Scalia once said "[Clarence Thomas] does not believe in stare decisis, period." I guess it was funny — perhaps you-had-to-be-there funny — that he deadpanned and then laughed. Perhaps he found it intriguing to use the word "affinity," as if he and the abstract concept (stare decisis) had a sort of personal relationship (with some complexity and not just lovey-dovey), or maybe he just meant to be sarcastic, as if to say oh, yeah, I just love stare decisis (meaning I hate it).
The bottom part of Liptak's column is about a particular case coming up for argument next week — Halliburton v. Erica P. John Fund — where a precedent should perhaps be overturned. But the case isn't about constitutional law, it's about an interpretation of the Securities Exchange Act, so it's really got nothing to do with what is distinctive about Clarence Thomas, and Liptak knows this and explains it. Legislatures can correct bad court decisions interpreting statutes, so we're not heavily reliant on the courts to fix mistakes. Liptak's explanation takes 5 paragraphs, and then there are 4 more paragraphs about why that Securities Exchange Act interpretation might be bad.
Column completed. My take on it is, Liptak needed to trounce Toobin. He knocked him out with one solid blow. Now what? Oh, I have all this other material. There's that stuff about Halliburton v. Erica P. John Fund ready to go because there's the argument next week, and Clarence Thomas can be connected to that because... oh, let's go with the old stare decisis material. The column practically writes itself. It's as if it were already written.