February 25, 2014

The NYT's Supreme Court writer smacks down the New Yorker's Supreme Court writer in one devastating sentence.

We've been talking (and talking and talking) about Jeffrey Toobin's toolish attack on Clarence Thomas in The New Yorker, and it's not surprising that the NYT needed to take notice and say something. So here's Adam Liptak in today's Times:
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.

“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.
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.

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.


Ann Althouse said...

(The boxing metaphors are deliberate, setting up the next post.)

pst314 said...

"My take on it is, Liptak needed to trounce Toobin."

So that nobody will ever again take Toobin seriously as an honest or intelligent commentator.

Mingus Jerry said...

Which part of adherence to stare decisis do liberal like? The part that would keep Dred Scot? Plessy? Pre-Miranda decisions?

Ann Althouse said...

Bowers v. Hardwick.

traditionalguy said...

So are we to see that Toobin threw the fight. The internet's need for controversy never ceases...it just writes itself, over and over.

IMO Clarence Thomas stands his ground because it is the right ground. He is not going to float like a butterfly and sting like a bee to defend Stare Decisis when it is just plain wrong, even in face of 97% of the liberal's opinions insisting the debate is over.

Clarence is the stubborn bull of the Court. He is like another Thomas of Acquin.

Bob Ellison said...

Both columns would better have been boiled down to three-sentence blog-comments.

cubanbob said...

I suspect that the reason Toobin is peeved is that Thomas is apparently immune to the pressure from the elites unlike the others be it from the left or right.

Taranto in the WSJ skewered Toobin yet again. In short Thomas can't be overruled, can't be fired, isn't subject to losing an election, can't be pressured by Congress, the executive or the media and can serve as long as he wishes and is equal to every judge on the court. He is behaving exactly as the framers intended Supreme Court intended.

Bob Ellison said...

Toobin concerned with framers' intent! That'd be worth a blog post.

From Inwood said...

NYT withdraws more than 120 gibberish articles.

OOPS, sorry:

From Intapundit

"The publishers Springer and IEEE are removing more than 120 papers from their subscription services after a French researcher discovered that the works were computer-generated nonsense.

"There is a long history of journalists and researchers getting spoof papers accepted in conferences or by journals to reveal weaknesses in academic quality controls...."

The Crack Emcee said...

How can anyone who understands Plessy v. Ferguson respect stare decisis?

To put that question to a black person strikes me as silly,...

Hagar said...

Toolish is a good new word. Just right.

MadisonMan said...

Both columns would better have been boiled down to three-sentence blog-comments.

Paid by the word. Don't ask the poor NYers to take a pay cut. They have rent to pay.

RecChief said...

so that is why Thomas is a danger to the left? He doesn't have any problem re-opening prior cases that the left loves, even if they didn't hew very closely to an originalist view of the constitution? I can see where that would give them problems.

elkh1 said...

"The white man demands that the black man entertain him?"

The intransigent black man refuses to step from behind a two hundred years old parchment to dance a jig for the white man.

cubanbob said...

How can anyone who understands Plessy v. Ferguson respect stare decisis?

To put that question to a black person strikes me as silly,..."

You don't have to be black to find it silly. That's why we need judges who go by the constitution as written and logically follow what it states. No where in the constitution does it state that there are distinct classes of citizens ( other than convicted criminals ). Had previous courts in the past had not been activists courts but simply followed the written text Plessy would have never been ruled the way it was, the Civil Rights Act would not have been needed and there would have been no need to pass a constitutional amendment to grant woman the vote.

Chuck said...

Professor Althouse hit on a terrific cite; Bowers v. Hardwick.

Bowers was the 1986 case in which the Supreme Court applied a straight-up "rational basis" test to a Georgia anti-sodomy law and found that it was not unconstitutional. Just 17 years later in Lawrence v. Texas, Justice Anthony Kennedy was overruling Bowers. Kennedy's ad hoc legal reasoning in overruling Bowers was excoriated by Justice Scalia in his Lawrence dissent. Scalia was incensed because of the blandly arrogant use of stare decisis to protect the holding of Roe V. Wade, but simply abrogated it with Bowers. Scalia was right of course. It is hypocrisy to suggest that stare decisis compels adherence to Roe v Wade, but not Bowers v. Hardwick. The only distinction is whatever is convenient to the ruling justices. Scalia led off his brilliant, scathing Lawrence dissent with his broadside on the selective use of stare decisis by the Lawrence majority:

"I begin with the Court’s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today’s opinions in support of reversal do not bother to distinguish–or indeed, even bother to mention–the paean to stare decisis coauthored by three Members of today’s majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

"'Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] … its decision has a dimension that the resolution of the normal case does not carry… . [T]o overrule under fire in the absence of the most compelling reason … would subvert the Court’s legitimacy beyond any serious question.' 505 U.S., at 866—867.

"Today, however, the widespread opposition to Bowers, a decision resolving an issue as 'intensely divisive' as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 15—16. Gone, too, is any 'enquiry' (of the sort conducted in Casey) into whether the decision sought to be overruled has 'proven "unworkable,"' Casey, supra, at 855.

"Today’s approach to stare decisis invites us to overrule an erroneously decided precedent (including an 'intensely divisive' decision) if: (1) its foundations have been 'eroded' by subsequent decisions, ante, at 15; (2) it has been subject to 'substantial and continuing' criticism, ibid.; and (3) it has not induced 'individual or societal reliance' that counsels against overturning, ante, at 16. The problem is that Roe itself–which today’s majority surely has no disposition to overrule–satisfies these conditions to at least the same degree as Bowers."

Justice Scalia, dissenting opinion in which Chief Justice Rhenquist and Justice Thomas joined, in Lawrence v. Texas, 539 U.S. 558 (2003).

jacksonjay said...

Well, of course, Roe is the elephant in the room.

I suspect that "let it stand" does not apply to Citizens United in the minds of wise ones!

n.n said...

So, courtroom participation is welcome, but not mandatory, for a passing grade.

Drago said...

Crack Emcee: "How can anyone who understands Plessy v. Ferguson respect stare decisis?"

Well crack, Justice Thomas' position on stare decisis is simply one of several reasons that your newest bestest BFF, Inga, and all her pals on the left think Thomas is one of the most horrible human beings there is.

So, you know. I suppose you'll have to reconcile that between you or something.

But remember now crack, you disagree with Inga.

And Inga is white.

Normally, that automatically makes you "right".

In this case though, as Inga will tell you, she is a liberal and not at all racist.

So, it's going to be tough to see how this one turns out.

I wish you two luck.

Drago said...

Plus, Inga and all her liberal white pals think Justice Thomas is stupid as well.

And that he is doing whatever Scalia tells him to do.

Again, this is what your newest BFF thinks about Justice Thomas.

So there ya go.

HoodlumDoodlum said...

Richard Epstein had a funny bit about the need for some minimal repect for stare decisis when he imagined an appellate judge hearing a boring case and interrupting with "oh, that's great, counsel, but I think we should really take another look at this Marbury decision before we go on..."

mccullough said...

Liptak says Thomas has a consistent and closely argued vision and then criticizes him because Thomas' view of stare decisis is consistent and closely argued.

B said...

They see more value in leaving existing doctrine as it is.

So I guess we know who the real conservatives on the court are.

n.n said...


A poignant observation. People should be more concerned with the right principles, firm, and reproducible, than precedent, which is circumstantial, and serves individual or special interests.

khesanh0802 said...

@ Crack Emcee 9:49

You got the point! Thank you for listening.

khesanh0802 said...

It is reassuring that at least one justice believes that the constitution should serve as the basis for the court's decisions!

David said...


Once I wanted to be part of them.

William said...

The left believes Stare Decisis must be honored as inviolable (to protect progressive legislation from the bench and judicial social engineering).

In light of the last 70 years of judicial overreach, stare decisis is overrated.

A good place to start is by overturning Wickard v Filburn.

caseym54 said...

I imagine that Thomas isn't too keen on the whole line of SC cases that began with stuff like Cruikshank and left blacks at the mercy of southern state officials. Plessy wasn't the worst of the lot by a long stretch.

Sam L. said...

"We've been talking (and talking and talking) about Jeffrey Toobin's toolish attack..."

I presume you did mean "toolish" with a t, and I commend you for it!

Roppert said...

Progs believe that Stare only applies to decisions they like.

jacksonjay said...

So I guess we know who the real conservatives on the court are.

Funny how we all become conservative when we get it just like we want it!

David said...

You still expect logic and reasoned argument from the Left.
Perhaps you do not understand "by any means necessary."

David said...

You still expect logic and reasoned argument from the Left.
Perhaps you do not understand "by any means necessary."

n.n said...

Both the Left and Right are responsible for setting unprincipled or counterproductive precedents. Each violation of our national charter and constitution, as well as related moral philosophy (i.e. Judeo-Christian), can be judged and either affirmed or rejected individually. There cannot be a selective rule of law. There cannot be a rule of law which sponsors either exceptional or fundamental corruption.

Douglas said...

It is safe to say that all the Justices have far more respect for the prior opinions they have authored - whether majority, concurring or dissenting - than they do for prior opinions of the Court. Consider, e.g., Justices Brennan and Marshall and their consistent votes against the death penalty. They did not, ever, consider themselves bound by stare decisis in death penalty cases. They consistently voted to strike down death penalty judgments from lower courts notwithstanding years of Supreme Court rulings upholding the death penalty. They cared primarily about being consistent with their vision of the Constitution (just like Justice Thomas) and with their own prior written opinions. You can say the same for pretty much all the Justices - any of them will vote to throw stare decisis out the window if they have the votes and if they think it's important.

Kirk Parker said...


"So that nobody will ever again take Toobin seriously as an honest or intelligent commentator."

Isn't that already an empty set?

SBG said...

I wouldn't mind if Clarence Thomas was my big brother.