Clarence Thomas-- The Most Important Justice?
slevinson at MAIL.LAW.UTEXAS.EDU
Mon Apr 1 15:47:47 PST 2002
Trevor Morrison writes:
At 01:43 PM 04/01/2002 -0800, you wrote:
>On Professor Levinson's "functional definition" of extreme, Justice Thomas's
>dissent in Colorado Republican Federal Campaign Committee v. FEC (1996),
>advocating that Buckley v. Valeo be overruled, seems a possible candidate.
>He was alone in that argument in that case, though the Chief Justice and
>Justice Scalia joined the other parts of his dissent. Then, as evidence of
>the slight normalization of that "extreme" position, Justice Scalia joined
>Justice Thomas's dissent making the same argument in Nixon v. Shrink
>Missouri Gov't PAC (2000).
One implication of "extreme" being simply a "functional definition" is that
there is nothing necessarily wrong (or right) in being an "extremist."
John Marshall Harlan I was, for example, an "extremist" in both the Civil
Rights Cases and Plessy, just as Justice Stone was in Gobitis. It took
Stone only three years to become "mainstream" (because of new appointments
and the change of mind by Black and Douglas), whereas Harlan's vindiction
took much longer. As Jack and I have written elsewhere, if George Bush (or
whoever holds the office in the future) successfully nominates Thomas-like
conservatives, then future analysts of the Court will describe him in the
same ways we tend to describe Harlan (or, for that matter, Holmes, who was
clearly an extremist in Lochner).
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