Said Justice Thomas, quoted in "Justice Thomas defends the Supreme Court’s independence and warns of ‘destroying our institutions’" (WaPo).
He's saying what they all say whenever they are out and about.
In recent weeks, Justice Stephen G. Breyer, during a book tour, has emphasized that he and his colleagues are not “junior league” politicians. Last week, the court’s newest member, Justice Amy Coney Barrett, told a crowd in Kentucky that justices are not a “bunch of partisan hacks” and that their divisions are based on competing judicial philosophies, not partisanship.
ADDED: I wish just once one of these Justices would have the nerve to approach the subject with a steel man argument for their attackers. They've been pummeling the same straw man so long.
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63 comments:
Cite one case in the last twenty years where a Lefty on the court decided against Democratic Party values and interests.
serious question
Why isn't Thomas Chief Justice? Is it because of systemic racism or what?
"their divisions are based on competing judicial philosophies, not partisanship."
We're not partisans we just have different philosophies that happen to align with a particular set of politics.
Isn't that what many politicians would say? That they're not partisan but just have different philosophies about the nature and role of government?
"He's saying what they all say"
True, and it doesn't make any difference, but he's the only one with any standing to say it, since he is the only one who has publicly committed himself to a judicial philosophy, which he has tried to follow fairly consistently, that compels him to move in a certain direction--and really is the only way to try and avoid being a partisan hack. Which still can't be avoided, since even Thomas can change his mind on a whim.
SCOTUS isn't bound by anything, certainly not its own BS.
"In recent weeks, Justice Stephen G. Breyer, during a book tour, has emphasized that he and his colleagues are not “junior league” politicians."
Oh, they're big league, no doubt about that.
Thomas is the only independent one on that court. He actually reads the document he is supposed to be interpreting.
The rest are hacks that think too much of themselves.
They are a mockery. They decide what they want and they go searching for anything to support their opinion.
Yes, well, that's the problems isn't it? The conservatives on the court look at the law and the Constitution and determine the constitutionality of the question at hand. The leftists on the court look at what their preferred outcome is and in all cases I can think of vote in a block to enact that outcome. To the left, a preferred outcome is constitutional, a non-preferred outcome is unconstitutional.
So the whole scheme always ratchets left, and once left never ratchets back
It is true that justices like to say they decide based on the constitution, not their personal politics, and also that there's good reason to conclude that's not true. But I think Thomas is saying something less than that, and also something true. He's objecting to the media's tendency to reduce people to caricatures. It's a laziness endemic to their coverage. Everything is horse race with them--who gains, who loses. What's the partisan angle? They never look to the issues involved and the competing considerations.
The media does a lot of damage by being simplistic and lazy.
Justice Clarence Thomas and his wife drive around America in the summer in their camper. They meet regular Americans; many don't know who he is.
He's got a better feel for the American people than Joe Biden; who hasn't left DC and Delaware in 50 years.
What's the difference between a judicial philosophy and a personal preference?
A third branch of government which operates in lock-step with the parties is of no use at all.
Yet so many have no use for one that doesn't.
Judges who thought abortion should be legal concocted an emanations-and-penumbras legal logic to make it legal in every state.
Similar concoctions happen all the time. Other good examples involve judges who oppose capital punishment or who support stricter gun control.
We can't have naked partisanship on the Supreme Court! But realistically, under the black robes, justice goes commando.
Why are the SCOTUS judges all making speeches and "Remarks" like they were Politicians? JUst shut up and do your job!
The opinions speak for themselves.
I wish just once one of these Justices would have the nerve to approach the subject with a steel man argument for their attackers.
Well, the problem is that it would make it rather uncomfortable in the Court for someone to publicly say that Sotomayor especially is a knee-jerk partisan hack. At least the other two sometimes attempt to put some thought into it.
Why isn't Thomas Chief Justice? Is it because of systemic racism or what?
Or what.
The Chief slot has little to do with judicial merit. It is an administrative/executive position. The CJ doesn't get any extra votes or power other than to assign opinions if in the majority and lead discussions. If offered, I'm sure Thomas would decline the Chief job.
Actually, I don't think he's "saying what they all say."
The choice of the abortion issue is telling. There are those amongst pro-lifers who argue that the Constitution not only does not protect the right to abort, but should be read to affirmatively protect unborn life.
I think Thomas is signaling that even though his personal preference would be to protect the unborn, he won't twist himself into knots to arrive at a "reading" of the Constitution to further that goal.
I think that's principled, and it's not just blather.
I think most of the Justices do try to shoot straight, even if they might occasionally be sabotaged by self-delusion. For example, Justice Kennedy was often described as lacking in a judicial philosophy and therefore unprincipled. But this was incorrect. Kennedy consistently interpreted the Bill of Rights generously, regardless the political context, and consistently applied a narrow view of federal powers in contrast to state powers. Sometimes his philosophy rewarded liberals and sometimes conservatives, which frustrated people whose ideas of consistency is essentially political. I do not share Kennedy's particular philosophy, but he was consistent in my view, and actually quite predictable.
Could you make the steel man argument for me, Althouse, so I could see if I know how to respond?
The liberal wing tends to be very predictable in terms of the results they'll reach in a given case. This is because their judicial philosophy is basically results-driven. They see the Constitution and statutes as all being anchored to a set of underlying social values (which happen to be progressive values); and so the "correct" interpretation is the one that best promotes those values.
In general, the conservatives are more willing to read the text of the Constitution or statute in question according to its plain meaning (and its original meaning in particular), and let the chips fall where they may in terms of the outcome.
This is the basic philosophical divide on the court. However, there's another HUGE dynamic in play as well: Whatever his judicial philosophy may actually be, CJ Roberts' paramount concern in selecting and deciding cases seems to be protecting the image of the court itself. Typically, this means that he won't let the chips fall where they may if the result is to upset the status quo on a matter of major national interest. I consider that impulse to be more or less antithetical to the purpose of a court. Like an umpire in baseball, a judge has to be willing to call 'em like he seems 'em, even if the home crowd doesn't like it. And, in any event, Roberts is flat-out wrong if he thinks that dodging the tough calls doesn't erode the people's faith and confidence in the court as much as overturning a few major precedents would.
Seems to me that a Steelman Argument (which would also be a sort of metatheory) is not really possible as a practical matter, or some smart law professor would have formulated it. It would have to address ALL the possible combinations of critique and defense for all justices on all opinions, and show precisely how they fall short of an agreed upon ideal--or don't, as the case may be.
When a jurist says that they try not to let bias, prejudice, and partisanship influence their decisions, I think it's only fair to give them the benefit of the doubt. We can always check the record and make our judgement then.
I had a position that required me to make decisions without bias, prejudice, and partisanship, and I would resent any glib brushoff, such as, "Oh sure" when I say that I tried my best.
Did Prof try to teach and grade without bias, prejudice, and partisanship?
Sure she did.
Do you mean argument like; "Abortion is legal in all 50 states. The Texas law didn't make abortion illegal, the law just provided guidelines for how to conduct them. If you don't like laws like this, don't trumpet similar laws brought before our court that puts restrictions on the right to keep and bare arms. After all, there is no wording in the Constitution nor ruling from this court that says the right to have an Abortion shall not be abridged. Your desire to have it both ways is what makes the court appear partisan to you."
The obvious problem is that the steel man argument would be true.
The best predictor of how Supreme Court justices vote in close cases is the party of the President who appointed them. What's more, a critical criterion in selecting justices is whether they will in fact be loyal to the party's goals. To be sure, politics doesn't determine every outcome. But most of the important ones, for most justices.
So how should a justice answer that steel man argument? They can't. Hence the straw man arguments.
"I wish just once one of these Justices would have the nerve to approach the subject with a steel man argument...
The circumstances of their ascension seem to preclude such an argument. Maybe you can suggest one.
They're appointed for their apparent judicial philososhies.
Their apparent judicial philosophies suggest preferred political results.
They're groomed to say they would "always follow the law as it applies to the facts of the case before them" during the confirmation hearings.
They're lauded for "good" decisions and raked over the coals for "bad" decisions based on the politics of the critic.
If they acknowledged all those things on a speaking tour, would that at least be the start of a steel-man argument?
I get that steel man is to be contra posed with straw man.
what are steel / straw man in this instance? examples for my education.
@Tim Maguire: You make an excellent point. Thank you.
Why isn't Thomas Chief Justice?
It would require another Senate vote. He barely survived the first one. The Dem base would love to humiliate him, even if he keeps his existing seat.
ADDED: I wish just once one of these Justices would have the nerve to approach the subject with a steel man argument for their attackers. They've been pummeling the same straw man so long.
@Althouse, please understand. If you disagree with anything Clarence Thomas says, he’s Clarence Thomas and you are not, ergo he’s right and it follows directly that you’re wrong.
They are not in lockstep with the parties. Most reactionary conservatives get pissed off when republican appointees vote with the libtard justices. A bigger concern is the dominance of the court by papists.
When people claim to be nonpartisan, they are claiming to transcend, like a hot air balloon floating above the landscape. But no human being is transcendent. When I claim to be nonpartisan, I am only deceiving myself. It is best to accept the partisan, tribal aspect of our judgments.
Yes, let’s talk about Ruth Ginsberg and her relationship with the ACLU and Planned Parenthood.
There’s a good steelperson topic.
Justice Kennedy was often described as lacking in a judicial philosophy and therefore unprincipled. But this was incorrect.
If you call relativism being principled -- "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" -- I guess Kennedy was principled. Problem is that it is the principle of no principles. It's like those who insist on the truth that there is no truth.
The best predictor of how Supreme Court justices vote in close cases is the party of the President who appointed them.
Historically, the Democrat appointed justices voted in the liberal direction. Also historically, most of the Republican appointed justices voted in the liberal direction, particularly in the close cases.
Yeah, because the papism of Brennan and Kennedy is a complete outrage.
And all those radical far-right justices voting the way they do because they take their marching orders from Pope Francis is an outrage too.
If you don't like laws like this, don't trumpet similar laws brought before our court that puts restrictions on the right to keep and bare arms. After all, there is no wording in the Constitution nor ruling from this court that says the right to have an Abortion shall not be abridged. Your desire to have it both ways is what makes the court appear partisan to you."
But that is exactly where Thomas' originalism falls apart. He contends that we should base what is cruel and unusual punishment or whether the death penalty is constitutional based on the morals of the late 18th century. Yet when it comes to the second amendment, it is not limited to weapons available in the same period.
The justices say they aren't political, but you can easily guess how they're going to vote on any given issue based on politics and be right almost every time. That doesn't seem like a coincidence. But that isn't going to alter my faith in the supreme court as an institution. My opinion of the court is already so low that there isn't much room to think any less of them.
The steel person argument Ann would like to see SCOTUS justices engage would be some version of Legal Realism. With the possible exception of Justice Thomas, I doubt any of the justices is inclined to argue the case against Legal Realism, mainly because they in fact accept it.
But Legal Realism, as is obvious with its ugly step-child Critical Legal Theory, sounds to the average citizen like judges deciding cases free of written law or precedents. Which seems like the position a partisan hack appointed to be a judge would take instinctively. Which in turn undermines the legitimacy of the judiciary in the eyes of the average citizenry. So, in the name of that legitimacy, SCOTUS justices in public speeches engage in a version of the very sophistry that Legal Realism sought to debunk.
One of those "competing judicial philosophies' is that the Constitution is a "living Constitution", a "Constitution that evolves over time." This philosophy and others like it, strike me as an open invitation for a judge or Justice to find that the direction of the evolutionary growth of this living entity meshes exactly with his own personal beliefs.
What a coincidence!
Blogger Howard said...
They are not in lockstep with the parties. Most reactionary conservatives get pissed off when republican appointees vote with the libtard justices. A bigger concern is the dominance of the court by papists.
Howard likes the justices to "grow in office," meaning to adopt the left's [politics like Bush has.
If they're not biased, then how come I can tell you exactly how they will vote without ever hearing the arguments?
'A bigger concern is the dominance of the court by papists.'
Bigotry much?
Stephen,
The best predictor of how Supreme Court justices vote in close cases is the party of the President who appointed them.
Not true. There are a lot of "close cases" that don't follow political lines at all, and also a lot of "political" ones that are unanimous or nearly so. (SCOTUSBlog does periodic rundowns of who voted what where, and the lineups are remarkably surprising sometimes, even in 5-4 and 6-3 cases.) What you mean is that in close cases on issues of general public import, like abortion, gun control, voting rights, election finance, "the navigable waters of the United States," and so forth, your rule applies, and that I think is mostly true.
ADDED: I wish just once one of these Justices would have the nerve to approach the subject with a steel man argument for their attackers. They've been pummeling the same straw man so long.
Stephen said...
The obvious problem is that the steel man argument would be true.
The best predictor of how Supreme Court justices vote in close cases is the party of the President who appointed them.
That is disproved by Souter.
The 4 Democrat "Justices" all vote in lock step on every political issue where their vote makes a difference, and the vast majority of the cases where it just meant there were 4, not 3, in the minority.
(Feel free to prove me wrong: provide a case where Thomas, Alito, and only two of (Roberts, Gorsuch, Kavanaugh, and ACB) are voting with them. And one of Breyer, Kagan, RGB, or Sotomayor provided the 5th vote to the Thomas - Alito side.)
So, what's the "steel man" version of the critics' side? That the lefties are all political hacks, but the ones appointed by Republicans are sometime principled?
Freder Frederson said...
But that is exactly where Thomas' originalism falls apart. He contends that we should base what is cruel and unusual punishment or whether the death penalty is constitutional based on the morals of the late 18th century. Yet when it comes to the second amendment, it is not limited to weapons available in the same period.
Really?
So nothing on the radio, TV, or internet if protected by the 1st Amendment, because they didn't exist back then?
What do you lefties keep on making that same moronic, obviously wrong, argument.
The "militia" is military. At the time the 2nd was passed, there were plenty of cannons (the tanks and fighter places of their day) in private hands.
So the 2nd Amendment protects people's right to own military weapons up to tanks and fighters, just like it protects your right to write stupid things on the internet
Field Marshall Freder: "But that is exactly where Thomas' originalism falls apart. He contends that we should base what is cruel and unusual punishment or whether the death penalty is constitutional based on the morals of the late 18th century. Yet when it comes to the second amendment, it is not limited to weapons available in the same period."
Jesus.
Freder actually hit "publish" on that comment......
"We can't have naked partisanship on the Supreme Court!"
This is the room where we conduct adversarial conflict!!
The Supreme Court is absolutely a partisan exercise of power. How do we know? because FDR and Joey Beiden risked their reputations to attempt Supreme Court packing, which would have had the effect of allowing their preferred political principles to be the law of the land. QED.
The Constitution is nothing but a contract between the states. There is a defined process for approval of amendments to the contract. "There is no living contract, Mr. Hart!! Only defined obligations!!" Pass an amendment or STFU Nancy.
Enter the penumbras of SCOTUS. A political SCOTUS makes all things possible. Congress has given their reproductive orbs to SCOTUS so that 9 life tenants can be blamed rather than 420 odd 2 year vote seekers. None know what the law is, the law is not from a body called the United States, the law is what 9 men say. Ex pos facto? ha you are funny.
FBI, the enforcer of the above.
For true partisan hackery, look at federal judge Emmet Sullivan. There are no adequate words to express my disdain for him.
If you have to go around telling people you're not "junior league ", that's a pretty good indication that you're junior league.
"I wish one of the Justices would have the nerve" ---- Every day every single one of them goes to work knowing they are not going to vote against the interests of their party. They are never going to admit to that.
They did not go to law school because they were brilliant. They went to law school in order to earn praise. There have been a few brilliant lawyers in the 200 plus years of the USA, none of them spent much time at the Supreme Court. FOR OBVIOUS REASONS.
That being said, Alito and Thomas are geniuses, in their way. For whatever reason, they understood the law when they were young, and it is a form of genius to understand the object of one's studies when young. Poor little Breyer is fairly intelligent too but he has been a hack since he was a teenager.
Back to Alito and Thomas - both of them are smarter, by about a standard deviation, than Scalia, who, although his votes were usually correct, was never much more than a little lost law prof who never was able to fully justify his positions. Nothing wrong with that - Scalia deserved the expensive home he lived in, he deserved all those chauffeured rides, because he worked hard with his one in a hundred intellectual gifts - but was he brilliant? - no, of course not.
I realize nobody cares what I think, and, to tell the truth, it is sort of comical to think of someone printing out what I wrote here and pinning it on a bulletin board in the basement of one of the buildings of Harvard Law.
But it is what it is. I actually do know exactly what I am talking about here.
An excellent review of Stephen Breyer's The Authority of the Court and the Perils of Politics makes the point that the partisanship is unavoidable but the justices often make it worse.
https://lawliberty.org/book-review/the-pitfalls-of-justice-breyers-rambling-consequentialism/
The greatest failing of the book is that he does not consider at all how jurisprudence bears on the political appearance of the Court. At one point he says that he does not want to get into jurisprudential debates, but he clearly lays out his own—one that eschews adherence to an originalist parsing of text in favor of broad values, like democracy or equality, that he claims animate the constitution as well as focusing on the consequences of the Court’s decisions.
But it is precisely this kind of jurisprudence that makes the justices seem like politicians in robes and that is likely to undermine the public’s perception of their comparative advantage. Politicians also claim their policies will advance broad values like democracy and equality. They make claims for the beneficial consequences of their policies. Whatever else may be said about originalism, its careful attention to the meaning of an old text and complex legal rules for interpreting it do not have any resemblance to a stump speech.
...
Unfortunately, Breyer’s lack of self-awareness characteristically undermines the plausibility of his work. In a previous book—Active Liberty—he called for a jurisprudence that focused on facilitating democracy. But he never even discussed the abortion rights decisions to which he adheres. Yet of course those decisions take democratic decision making away from the people of the states and arrogate it to judges—and they do so without any support in the text of the Constitution. In his new book, he calls for increasing the habit of trust in courts, but never considers how his own jurisprudence may decrease that trust.
[Why] do you lefties keep on making that same moronic, obviously wrong, argument[?]
Because their fellows nod appreciatively each and every time.
Uncle Pavian said...
If you have to go around telling people you're not "junior league ", that's a pretty good indication that you're junior league.
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how does this work when someone calls you junior league?
e.g. ISIS per OBAMA
Josephbleau said...
The Constitution is nothing but a contract between the states.
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Either it is merely a political "contract" aka modus vivendi?
or if it is legal contract then it cannot be supreme law of land?!
as merely political I would say Constitution betrays Declaration of Independence.
People have been celebrating Fourth of July under false pretense / auspices
Let us try to find our steel man in these thickets
If you call relativism being principled -- "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" -- I guess Kennedy was principled.
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I don't get it! what is there to disagree
of course I consider all rights DIY projects - no outside assistance except through negotiated trades
I wish just once one of these Justices would have the nerve to approach the subject with a steel man argument for their attackers. They've been pummeling the same straw man so long.
The only way to avoid the appearance of partisanship is to take the text of the Constitution seriously. If you're a textualist, you take your oath seriously, as words to be followed. If you're a textualist you take the words (and laws) of other people seriously. You are not the law. You are following the law.
The Supreme Court will always be a joke of an institution as long as they continue to insist that an unborn baby is a non-person (while simultaneously saying that a corporation is a person!).
They are flagrant hypocrites. And they dress like priests so that we will all look up to them and treat them as if they are holy. These are people who say that it is "right" to stab and poison unwanted babies.
Everybody knows that a person is a live human being. This flagrant disregard for text -- for law, for our Constitution, and all the blood that was shed to put the equal protection clause in our Constitution -- is a mark of dishonest, power-mad people who worship themselves.
Why] do you lefties keep on making that same moronic, obviously wrong, argument[?]
I am not making that argument. You missed my point. Unlike Thomas I think originalism is nonsense. Thomas believes that cruel and unusual should be judged by the standards of the late eighteenth century. I don't understand how an originalist can believe that technology can evolve but it is okay to tie a prisoner to a pole because that was not considered cruel and unusual in 1793.
And yes, please explain how the originalist accepts the application of electronic media under the first amendment .
"He's saying what they all say whenever they are out and about."
I like the idea of bumping into one in the grocery store, in their SC robe and striking up a discussion.
And yes, please explain how the originalist accepts the application of electronic media under the first amendment .
OK.
First you have to go back to the original meaning of the First Amendment when it was written and ratified. Specifically the phrase "freedom of the press". Our common understanding of this phrase is flawed. Most people today think that freedom of the press deals with the rights of a self selected group of people to cover the days events. The problem is, when the First Amendment was written and ratified, the word press did not refer to people. It referred to the machine required to distribute ideas in the public marketplace, a printing press. You also have to remember that in many European countries at this time, access to printing presses was restricted and even illegal at times. The Founding Fathers were protecting the right of the people to use the means necessary to express and distribute their ideas. Electronic communication is necessary today to express and distribute ideas in the public marketplace, and thus falls under the protection of the First Amendment.
In fact I'll go one further. IMHO, the true meaning of freedom of the press would justify turning Facebook, Twitter, and perhaps Google into public utilities, just like the water, electricity, gas and trash companies are.
Freder Frederson said...
Me: [Why] do you lefties keep on making that same moronic, obviously wrong, argument[?]
I am not making that argument. You missed my point. Unlike Thomas I think originalism is nonsense.
You are the moron making the argument that the US Constitution is about technology rather than principles.
Thomas believes that cruel and unusual should be judged by the standards of the late eighteenth century. I don't understand how an originalist can believe that technology can evolve but it is okay to tie a prisoner to a pole because that was not considered cruel and unusual in 1793.
And that's why you're either a moron or a liar.
It's because technology changes, but people do not. Was doing "X" to someone considered "cruel and unusual" by the people who passed the ban on "cruel and unusual punishments"? No?
Then obviously they didn't ban it.
Do you think it's "cruel and unusual", and therefore should not be done? Do you think society has changed to teh point where society now considers that "cruel and unusual", and not to be done?
Well then, get people together and vote to ban that. That should be no problem if society actually agrees with you.
Your problem is that society doesn't agree with you, and being a worthless piece of shit, you think that give you the right to trample on teh US Constitution, teh rule of law, and democracy, and throw out everyone else's desires and replace them with your own.
Because God has told you the "one true way", and you're going to make the rest of us bow down to it.
FOAD.
Here's your simple metric for understanding if it's a bullshit argument:
"Society has changed": Then it's the job of elected politicians to demonstrate those changes by changing the laws. no judges or Justices need apply
"The technology has changed, but the principles have remained the same": Then the Constitution and laws continue to cover the new technology the same way they covered the old, unless they explicitly tied themselves to a particular piece of technology.
The one group of people who are absolutely unqualified to judge how "society has changed" are people who are unelected by, and unaccountable to, that society or its members
https://lawliberty.org/book-review/the-pitfalls-of-justice-breyers-rambling-consequentialism/
The greatest failing of the book is that he does not consider at all how jurisprudence bears on the political appearance of the Court. At one point he says that he does not want to get into jurisprudential debates, but he clearly lays out his own—one that eschews adherence to an originalist parsing of text in favor of broad values, like democracy or equality, that he claims animate the constitution as well as focusing on the consequences of the Court’s decisions.
But it is precisely this kind of jurisprudence that makes the justices seem like politicians in robes and that is likely to undermine the public’s perception of their comparative advantage. Politicians also claim their policies will advance broad values like democracy and equality. They make claims for the beneficial consequences of their policies. Whatever else may be said about originalism, its careful attention to the meaning of an old text and complex legal rules for interpreting it do not have any resemblance to a stump speech.
Bingo!
Thank you for that quote
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