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.
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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).
betrayed? thomas was always a right wing zealot, there is zero sense of betrayal here.
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: Thomas and Scalia joined each other's dissenting opinions in Hamdan.
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.
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.
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."
Mark,
Sorry, we cross-posted re Hamdi. :)
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!
Ann - No, your favorite isn't completely obvious to me. If we guess, will you say who is your favorite?
Souter--just because he's Souter, I know its not his fault he got on the court, but I only had nine choices.
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.
My guess is that Kennedy is Althouse's current favorite.
He is pragmatic and Althouse is the pragmatic type...
My guess is that Henry is at least half right ;-)
"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.
I think its going to take more than encouragement.
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.
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,
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.
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.
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?
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.
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.
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.
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.
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.
"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.
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.
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.
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