October 28, 2014

"Justice Clarence Thomas, who has not asked a question from the Supreme Court bench since 2006, was expansive and gregarious."

"Justice Samuel A. Alito Jr., who can appear a little dour during arguments, revealed a lively wit. Justice Sonia Sotomayor said she was working to temper a combative questioning style 'that has held me in bad stead.'"

So begins Adam Liptak's NYT article "Three Supreme Court Justices Return to Yale."
Justice Thomas... He acknowledged being a “cynical and negative” law student, blaming immaturity and the unsettled political climate of the early 1970s. “I cannot say we were thinking straight about a lot of things, even if we were not using illegal substances,” he said. “I wish I came here at a time when I could have been more positive.... There is so much here that I walked right by.”...

The justices were questioned by Kate Stith, a law professor at Yale. She asked Justice Alito what he had been reading. “I have two books that are inspirational,” he responded. “I keep them on a table by my bed, and I try to read a little bit of them every night. It’s ‘My Grandfather’s Son’ and ‘My Beloved World.’ ”
Alito is hilarious. There's also this:
Justice Sotomayor cited two reasons for the court’s reluctance to use technology [to communicate with each other]. One was tradition. “The other,” she said of some of her colleagues, “is they don’t know how.”

And the d├ęcor is from another era. “We still have spittoons by our seats,” Justice Alito said.
I assumed that was a punchline from Alito, but Liptak signals that it's literally true that there are spittoons. It's still a humorous line, but less funny — less funny of Alito if there really are spittoons,* even though making the observations at that point is a concise, amusing way to say the Court is old-fashioned. And since it's funny if they have spittoons, the sum total of funniness is at least as good as if Alito made it up.

Liptak continues with a Thomas quote, introduced with a Liptak sentence about how to understand the state of mind it reflects:
Justice Thomas said he was content with the way things are. “I like formality,” he said.
I could think of some other ways to interpret those 3 words and don't like being told to think of Justice Thomas as complacent and stiff. A person might like formality without being content with the way things are. A preference for formality can arise out of discomfort and mistrust.** What kind of person shies away from free-wheeling banter and wants things put in writing?

__________________________________

* There are real spittoons: "Each [Justice] has... a spittoon. The spittoons serve as wastebaskets. The last time a justice used a spittoon for its intended purpose was in the early 20th century."

** There is Critical Race Theory scholarship connecting a preference for formality to race. Citation to come.

ADDED: Here's what I was looking for, Patricia J. Williams, "The Alchemy of Race and Rights," Chapter 8, "The Pain of Word Bondage." Williams describes the willingness of her colleague Peter  to rent an apartment with no written agreement, to hand over a $900 cash deposit to strangers without even getting the keys. She, a black, female law professor, said:
… I was raised to be acutely conscious of the likelihood that no matter what degree of professional I am, people will greet and dismiss my black femaleness as unreliable, untrustworthy, hostile, angry, powerless, irrational, and probably destitute. Futility and despair are very real parts of my response. So it helps me to clarify boundary; to show that I can speak the language of lease is my way of enhancing trust in me in my business affairs. As black, I have been given by this society a strong sense of myself as already too familiar, personal, subordinate to white people. I am still evolving from being treated as three-fifths of a human, a subpart of the white estate. I grew up in a neighborhood where landlords would not sign leases with their poor black tenants, and demanded that the rent be paid in cash; although superficially resembling Peter's transactions, such informality in most white-on-black situations signals distrust, not trust. Unlike Peter, I am still engaged in the struggle to set up transactions at arm's length, as legitimately commercial, and to portray myself as a bargainer of separate worth, distinct power, sufficient rights to manipulate commerce.

Peter, I speculate, would say that a lease or any other formal mechanism would introduce distrust into his relationships and he would suffer alienation, leading to the commodification of his being and the degradation of his person to property. For me, in contrast, the lack of formal relation to the other would leave me estranged. It would risk figurative isolation from that creative commerce by which I may be recognized as whole, by which I may feed and clothe and shelter myself, by which I may be seen as equal — even if I am a stranger. For me, stranger-stranger relations are better than stranger-chattel.

25 comments:

Birches said...

Too bad there isn't comments on the article. It's always amusing to watch the NYT commentariat froth at the mouth over Clarence Thomas' apparent stupidity.

Bob Ellison said...

I understand the phrase "critical theory" to be a hand-holding disguise for Marxism in every form of rhetoric.

Is "Critical Race Theory scholarship" different?

Your commenters, Professor, constitute the most astute and learned folks I've encountered online. I try to keep up with them.

So I also try to ask when I'm not sure about a term. Does "critical theory" always equal Marxist crappery?

Unknown said...

I have no problem with Sotomayor being on the Bench, though I do not share her political and judicial philosophies. I do have a problem with the never ending media portrayals of her righteousness and wisdom while the more conservative Justices are disparaged without end by the same media. Justice Thomas is an excellent and often prescient man, whose wisdom and rightness will be seen more and more clearly as the years go by. The haters in the media - and hater is not even a strong enough word, will glory among themselves while they are alive, but history will show their grandchildrens grandchildren ashamed to have them in their family trees.

mikee said...

When distinguished alumni return to the olde sod for a visit, it is always interesting to demonstrate two things: their immaturity while at university as students, which current students of course do not exhibit, and their antiquity compared to current students, who of course know all about all.

Mission accomplished.

Bob Ellison said...

Wikipedia says this about Critical Race Theory.

Marx only comes up in the footnotes. They're hiding him.

Unknown, these are strange days. There were times decades ago when supposedly smart and clearly powerful people said the Constitution was out-dated.

I'm way off-topic, but you footnoted a future-promised post, so I demand a waiver.

RecChief said...

A person might like formality without being content the way things are. A preference for formality can arise out of discomfort and mistrust.** What kind of person shies away from free-wheeling banter and wants things put in writing?

Could you elaborate on what you are thinking? In some settings, formatlity conveys the gravity of the activity. It's why I cringe a bit when I see pictures of weddings where there aren't formal dresses and suits. It's why I cringe when I see soldiers around town in duty uniforms rather than Class Bs. Are you saying that the Supreme court should give the appearance of dorm commons room, when people are discussing the weakness of the NFC East?

Formality also keeps passions in check somewhat. I would rather Justices on the highest court in the land read the law dispassionately, and render a decision equally dispassionately.

NorthOfTheOneOhOne said...

I suspect the NYT would be much happier if Justice Thomas would shout out the occasional "Dyn-o-mite!" when the court is in session.

Bob Ellison said...
This comment has been removed by the author.
mccullough said...

The next justice should be one who uses the spittoon for its intended purpose

NorthOfTheOneOhOne said...

I bet Thomas doing the Flip Wilson handshake with Sotomayor would go over big with the NYT as well!

Fernandinande said...

"Bob Ellison said...
Wikipedia says this about Critical Race Theory."

Summary: white people are bad.

I'm sticking with Critical Phlogiston Theory because it's way more scientifical.

Saint Croix said...

So I also try to ask when I'm not sure about a term. Does "critical theory" always equal Marxist crappery?

I always associate the crits with Marx.

Mark Tushnet, one of the big crits, was a clerk for Justice Marshall during Roe v. Wade. Tushnet is responsible for a memo moving the point from the first trimester to viability. He wanted to do this so the poor would have more opportunities to abort their children. (See also the welfare rights cases, where Justice Blackmun talks about the "cancer of poverty" and offers free abortion as a cure).

Tushnet would later write a law review article saying that cases should be decided by how they "advance the cause of socialism." I think that was his motivation in Roe, and he was aligned with Marshall, Brennan, and Blackmun. I think these guys were motivated by socialism. The feminist rhetoric would come later.

Both Tushnet and Duncan Kennedy (two prominent crits) teach at Harvard.

Mark Leavy said...

"I have two books that are inspirational,”

I had to look up the book titles. Hilarious.

Saint Croix said...

Thomas' book is really good, by the way.

Interesting that he went to Yale. He hates Yale! Or at least he hated his experience there. Note how he's criticizing himself. He's so polite, just a super-nice man.

He came to my law school. One thing I remember, a lot of the black law students refused to clap for him. It was a very obvious rebuke. On the other hand, black people who were doing janitorial work were super-proud of him and wanted to shake his hand.

Thomas is notable for seeking out clerks who are not from the Ivy league.

David said...

Formality is inclusive and comforting if everyone is clued in to the rules. If you are not conversant with the rules, formality can cause division and discomfort.

It is true that formality can be used as a tool to exclude, if those who know the rules make them arcane and obscure, and fail to create mechanisms whereby everyone can learn the rules. But it is also true that individuals and groups can rebelliously refuse to learn (or comply with) "the rules." Think teenagers, for example.

I suppose it is satisfying to criticize the formality and complication of law as exclusionary. But there is a considerable value to the routine and predictability of law. The real question is whether individuals and groups are excluded from access to learning the rules. This is an issue at the technical level (lawyers etc) and at the social level (ordinary citizens trying to live in the society under its rules.)

I have very little exposure to critical theory in the law. But it seems to me that it must be easy to confuse the listener if you decline to address the value of formality and the issue of access to the rules as separate and important elements.

FullMoon said...

mikee said...

When distinguished alumni return to the olde sod for a visit, it is always interesting to demonstrate two things: their immaturity while at university as students, which current students of course do not exhibit, and their antiquity compared to current students, who of course know all about all.

Mission accomplished.

Ah, but I was so much older then
I’m younger than that now,


bobdylan

Saint Croix said...

I've often wondered why Supreme Court Justices don't ask law professors to clerk for them. Especially if you're lazy and your clerks are writing your opinions anyway. Shouldn't you get the smartest people? Why limit yourself to young people in their 20's? Sign up Akhil Amar and Eugene Volokh and Michael McConnell. And then go fishing. (Or, like Thurgood Marshall, watch soap operas all day).

jimbino said...

I've met common folks on the road who've motor-home camped with Justice Thomas and his wife. It would be a hoot to meet them some day around a campfire or overnighting in a Walmart parking lot in the West.

HoodlumDoodlum said...

To save time, what doesn't Critical Race Theory have scholarship connecting to race?

ken in sc said...

About formality and informality, I once attended a church service at which the minister had established a policy of having no church bulletin printed. This meant that no one except him knew what was going to happen next--the order of worship or what hymn to sing when. I found this very uncomfortable and an unreasonable power grab on the part of the minister. He said that it made the service more open, free, and informal. I thought to myself, yeah for him, and nobody else. Formality has its purpose.

Beldar said...

I'm guessing that the reason Mr. Justice Thomas was at this particular Yale Law School event has little to do with his own regard (or lack thereof) for his alma mater, but a great deal to do with his personal regard — and his very traditional and formal professional regard — for his colleagues Mr. Justice Alito and Madam Justice Sotomayor.

Given the historic distance that Yale Law and Mr. Justice Thomas have put between themselves, both are to be commended for getting through this with good grace and without incident.

Beldar said...

BTW, Saint Croix: Mark Tushnet was my 1L professor for Federal Civil Procedure in Fall 1977, when he was visiting at Texas and while the ink on Roe v. Wade was still wet. I knew he was a Marxist, and a Blackmun clerk, but no more than that. He was brilliant and funny, and I liked his class a lot, despite crippling nervousness that made him painful to hear. I worked with him later on law review stuff — I edited a book review he did for TLR, and we published one of his articles as well — and he was very gracious and easy to work with. I was never offput by his politics, and if he ever felt it, he resisted any impulse to share with his students the Marxist dialectic surrounding the class action certification procedures under Fed. R. Civ. P. 23.

Saint Croix said...

he resisted any impulse to share with his students the Marxist dialectic surrounding the class action certification procedures under Fed. R. Civ. P. 23.

ha!

Saint Croix said...

I heard one of the law professors--might have been Tushnet--advocated that the law professors and the janitors all ought to switch positions for a day. The janitors teach law school and the professors sweep the floors.

Not a bad idea, actually.

Saint Croix said...

Although I already know that being a janitor would suck. That's why we have money, to pay people to do things that suck.