"Explaining" justices

Tue Jun 5 09:55:45 PDT 2007

True enough.  But surely we can agree that Justice Thomas has a larger philosophy, whatever its merits, even if he sometimes hews to that philosphy imperfectly.  It seems to me that others on the court are far more vulnerable to criticism on this ground.  See, for example, Michael McConnell's devastating review of Justice Breyer's recent book.

Larry Rosenthal
Chapman University School of Law
-------------- 

________________________________

From: michael curtis [mailto:curtism at bellsouth.net]
Sent: Tue 6/5/2007 8:57 AM
To: Rosenthal, Lawrence; Robert Sheridan
Cc: Sanford Levinson; CONLAWPROF at lists.ucla.edu; DavidEBernstein at aol.com; Mitch Berman
Subject: Re: "Explaining" justices

To be fair, it looks to me as though all the justices of whatever political
stripe are much influenced by their views of what currently seems expedient
& none are entirely consistently originalist, states' rights or anything
else.  But it is not necessarily a narrow view of expediency--what result do
we want in this particular case--though sometimes it is that too.  All
justices, at times, appear on stage in the constitutional law play wearing
another's robes and speaking his or her lines.  It puzzles me that any one
can miss it.  What is involved is not a consistent commitment to states
rights or original intent, etc.  It is a larger philosophy.

Michael Curtis
----- Original Message -----
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
To: "Robert Sheridan" <rs at robertsheridan.com>
Cc: "Sanford Levinson" <SLevinson at law.utexas.edu>;
<CONLAWPROF at lists.ucla.edu>; <DavidEBernstein at aol.com>; "Mitch Berman"
<MBerman at law.utexas.edu>
Sent: Monday, June 04, 2007 10:01 PM
Subject: RE: "Explaining" justices

Perhaps Justice Thomas fears that once judges go around picking and choosing
based on their notions of what currently seems expedient, the result may
well be Plessy v. Ferguson.

Larry Rosenthal
Chapman University School of Law

________________________________

From: Robert Sheridan [mailto:rs at robertsheridan.com]
Sent: Mon 6/4/2007 6:13 PM
To: Rosenthal, Lawrence
Cc: Mitch Berman; Scott Gerber; DavidEBernstein at aol.com; Sanford Levinson;
CONLAWPROF at lists.ucla.edu
Subject: Re: "Explaining" justices

I'm not sure that I, for one, care what Justice Thomas thinks was the
original meaning of anything, and this goes double for Justice
Scalia, for that matter.

What I do care about is what we think about the meaning of the
various texts today.  The decisions today, while often cast in terms
of presumed original meaning or intent yesterday, really state what
we, or at least five votes, think today.  Dressing up today's values
in yesterday's window-dressing doesn't make them any more purchase-
worthy if they're dross in the first place, such as last week's
employment discrimination decision letting workers hang unless they
sue for paycheck discrimination within 180 days after being hired.

There is such a thing as an infinite regress, in which one seeks to
go so far into the past that no answer is ever found no matter how
long one digs.  The Black Hole of the Past, one might call it, where
not even light can find its way out, relatively speaking.

Self-contradictorily, but not, I hope, hypocritically, I admit to
admiring tracing values as far back as written history, such as the
Old and New Testaments, Homer, Shakespeare, etc.  But I cherry-pick,
dumping the mouldy, outdated, fruit and sticking to what looks fresh,
which I hope will remain sweet awhile longer.  What is important, I
believe, is that old values worth keeping must help us become clean
today, for lord knows we've had a lot of traditional values that
stepped on the head of mankind for far too long.

rs

On Jun 4, 2007, at 5:43 PM, Rosenthal, Lawrence wrote:

> Isn't the meta-principle here Justice Thomas's understanding of
> originalism?  It seems to me that Justice Thomas believes that the
> original understanding of the Fourteenth Amendment was that it
> adopted a race-neutral equality principle with respect to race, but
> not with respect to any number of other classifications about which
> there was not yet a generally understood equality principle.  That
> is surely a plausible account of the original understanding of the
> Fourteenth Amendment, given that it was not at the time thought to
> require equality with respect to sex or sexual orientation.
>
> One can fairly debate the merits of Justice Thomas's brand of
> originalism, but I see no inconsistency lurking within a view that
> the original understanding was to embrace a strong equality
> principle with respect to race only.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: Mitch Berman [mailto:MBerman at law.utexas.edu]
> Sent: Mon 6/4/2007 5:12 PM
> To: Scott Gerber
> Cc: CONLAWPROF at lists.ucla.edu; Rosenthal, Lawrence;
> curtism at bellsouth.net; Sanford Levinson; DavidEBernstein at aol.com
> Subject: RE: RE: "Explaining" justices
>
>
>
> Thanks to Professor Gerber for the citation.  Here, I take it, is
> the most relevant passage from the conclusion to his book:
> "Justice Thomas appeals to the *ideal* of equality at the heart of
> the Declaration of Independence when he decides questions involving
> race, but to the Framers' *specific* intentions -- as manifested in
> the text and historical context of the Constitution -- when he
> decides questions involving civil liberties and federalism."  (p.193)
>
> Perhaps that's a fair (if rough and partial) description of
> Thomas's constitutional jurisprudence.  Insofar as it is, the major
> question the description provokes (of course) is: what meta-
> principle warrants this selective embrace of strikingly different
> interpretive approaches, and how can this dual-path approach be
> squared with Thomas's insistence (in an opinion nicely selected by
> Professor Gerber as an epigraph to his conclusion) that "strict
> adherence" to originalism "is essential" to ensure that Justices
> not "infus[e] the constitutional fabric with [their] own political
> views"?
>
> Or, to put essentially the same point two other ways:  (1) by what
> non-political standard does Thomas determine that discrimination on
> non-racial grounds (sexual orientation, anyone?) should be assessed
> by reference to the specific intentions that are proper for civil
> liberties and federalism cases and not to very general ideal of
> equality?  (2) does anyone on this list doubt the ridicule, even
> excoriation, that Justices Scalia and Thomas would level against
> liberals who adopted similarly selective approaches to the
> originalist menu?
>
> (For what it's worth, though I've only skimmed through Professor
> Gerber's book, my quick sense is that he seeks only to describe
> Thomas's two-level approach, not to defend it.  If I'm mistaken, I
> hope to be corrected.)
>
> Mitch Berman
> The University of Texas
>
> -----Original Message-----
> From: Scott Gerber [mailto:s-gerber at onu.edu]
> Sent: Monday, June 04, 2007 11:47 AM
> To: Mitch Berman
> Cc: CONLAWPROF at lists.ucla.edu; Rosenthal, Lawrence;
> curtism at bellsouth.net; Sanford Levinson; DavidEBernstein at aol.com; s-
> gerber at onu.edu
> Subject: Re: RE: "Explaining" justices
>
> I have written widely about Professor Berman's methodological question
> regarding Justice Thomas and affirmative action.  I respectfully refer
> him to the conclusion of my book First Principles:  The Jurisprudence
> of Clarence Thomas (NYU Press, 1999; 2002).  Shorter pieces are also
> available at my faculty webpage, linked to the bottom of this email.
>
> Bottom line:  Justice Thomas is a "liberal originalist" on race
> questions.  In other words, he employs a Lockean liberal reading of
> the
> Declaration of Independence to conclude that the equal protection
> clause requires colorblind constitutionalism.  He is a "conservative
> originalist" on other questions of constitutional law.
>
> Scott
>
>
> Mitch Berman wrote:
>
>
>> Though I do not really expect to change anybody's mind on this issue,
> it requires greater self-restraint than I possess to allow Professor
> Rosenthal's praise for Justice Thomas's affirmative actions
> opinions to
> pass without comment.  Surely Professor Rosenthal is correct that
> those
> opinions are clear enough.  But they are not, in my opinion, "candid."
> Indeed, "grotesque" strikes me as closer to the mark.
>>
>> To start, as innumerable others have charged time and again, Thomas's
> insistence that the Constitution simply forbids all racial
> classifications (or plainly subjects them all to strict scrutiny) is
> inconsistent with his embrace of originalism.  To be clear, I do not
> deny that there are reasonable arguments of policy and principle
> against race-based affirmative action programs.  I'm even prepared to
> grant that there exist plausible arguments that race-based affirmative
> action is unconstitutional.  But you can't get there from Thomas's
> starting position (nor, of course, from Justice Scalia's).  Moreover,
> neither Thomas nor Scalia has even bothered to offer a serious account
> of how their positions on affirmative action can be squared with their
> interpretive methodologies.  (At least I'm not aware of any such
> explanations; if I'm mistaken, I'd be grateful for the correction.)
> For my money, this is intellectual dishonesty, pure and simple.
>>
>> Second, and notwithstanding my granting that the moral case for
> affirmative action is not unproblematic, Thomas's claim of a "moral
> equivalence" between affirmative action and Jim Crow defies belief.  I
> am aware of no plausible moral theory according to which this would be
> true.
>>
>> So those who think Thomas's positions cry out for explanation need
>> not
> be guilty of crass or naïve essentialism.  The question they ask is
> not
> "how could a black man possibly reach results different from those
> favored by a majority of members of his race?"  The question (or one
> big question) is what drives Thomas so forcefully toward those results
> as to blind him to the  intellectual and moral indefensibility of his
> claims?  (Again, I am speaking of the particular claims he advances en
> route to the conclusion that affirmative action is unconstitutional,
> not of that bare conclusion itself.)
>>
>> Mitch Berman
>> The University of Texas
>>
>>
>>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal,
> Lawrence
>> Sent: Sunday, June 03, 2007 3:08 PM
>> To: Sanford Levinson; DavidEBernstein at aol.com; curtism at bellsouth.net;
> s-gerber at onu.edu; CONLAWPROF at lists.ucla.edu
>> Subject: RE: "Explaining" justices
>>
>> I find it puzzling that most liberal academics (and journalists) see
> Justice Thomas as a racial enigma.  I do not think that any member of
> the Court has gone to greater lengths to make apparent the roots of
> his
> views on race and the law than Justice Thomas.
>>
>> On the question whether he lacks sympathy for minorities and is
>> guilty
> of some form of self hatred, see his dissenting opinion in City of
> Chicago v. Morales, 527 U.S. 41 (1999).  I am hardly a disinterested
> observer, having argued the case for Chicago, but to my eye, Justice
> Thomas's dissent evinces enormous sympathy for the residents of high
> crime minority neighborhoods of Chicago who are must live amid gang
> violence.  It seems clear to me that the minority residents of Chicago
> who advocated for the gang loitering ordinance (whose testimony he
> stressed although it went ignored by every other member of the Court)
> reminded Justice Thomas of the people who raised him in Georgia.
> Apparently Justice Thomas is expected to sympathize with the gang
> members who terrorize these communities, and embrace legal doctrines
> that make it harder to put them in jail, and make jail nicer for them
> while they are there.  Instead, Justice Thomas's sympathy lies with
> the
> hard working law abiding !
>> residents of the communities who bear the brunt of epidemic gang
> crime.  Is that really an enigma?
>>
>> As for affirmative action, Justice Thomas's views could not be more
> clear.  His opinions in Missouri v. Johnson and Grutter v. Bollinger
> are among the most candid and personal of any in the history of the
> Court.  Indeed, I find it enigmatic that in the legal academy, Derrick
> Bell is usually treated as some kind of saint while Justice Thomas is
> cast as the villian.  In Grutter, Justice Thomas argued that
> affirmative action had been embraced by the University of Michigan
> only
> because it was thought to serve the interests of white elites, and he
> is accused of self hatred.  Yet Professor Bell has argued for years
> that affirmative action is likely to do no more than serve the
> interests of white elites without alterning the fundamental power
> structure of the country, and no one accuses him of self hatred.
> Perhaps Justice Thomas can be accused of some measure of hypocrisy for
> accepting a nomination that was doubtless influenced in part by
> considerations of race.  (Although Preside!
>> nt George H.W. Bush vigorously denied that selecting Judge Thomas on
> the basis of race, and it is a bit odd to fault Justice Thomas for not
> indignantly calling President Bush as a liar and declining the
> nomination on that basis.  Is that really what he was expected to do?)
> In any event, if pressed on the point, I think it fairly clear that
> Justice Thomas would say that he was not going to turn down a
> nomination that would enable him to do a great deal to advance the
> causes about which he cares because of his doubts about the motives of
> the President that nominated him.  Who among us can truthfully say
> that
> they would turn down a Supreme Court nomination based on suspicions
> about the motives that may underlie the nomination?  No enigma there.
>>
>> Larry Rosenthal
>> Chapman University School of Law
>>
>> ________________________________
>>
>> From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
>> Sent: Sun 6/3/2007 10:16 AM
>> To: DavidEBernstein at aol.com; curtism at bellsouth.net; s-gerber at onu.edu;
> CONLAWPROF at lists.ucla.edu
>> Subject: RE: "Explaining" justices
>>
>>
>> David writes, "We don't need to "explain" Justice Thomas any more
>> than
> we need to "explain" Justice Scalia, Chief Justice Roberts, or Justice
> Alito.  Where are all the psycho-biographies explaining how a nice son
> of Italian immigrants could someone become a crazed right-winger?"
>>
>> Does David mean, therefore, that we don't need "to explain" anyone in
> the world, because it is always enough to say that X sincerely
> believed
> in A, B, and C (which is often true, of course), or that we should be
> equal opportunity "explainers" who realize that it is of interest to
> ask why could at the same time believe in ghosts and the theory of
> gravity, why, a al Thomas Kuhn, some scientists were able to make the
> jump to new understrandings of the world while others remained devoted
> to phlogiston, Newtonian physics, etc?  I take it that Mark Tushnet's
> two volume biography of Thurgood Marshall, along with much useful
> information, offers some "explanations" for why Marshall behaved as he
> did, though Juan Williams helpful biography probably offers more
> "explanations."  And would anyone dare write biographies of Harry
> Blackmun and Warren Burger without consulting Linda Greenhouse's book
> detailing the relationship between the two men?  And so on.  (My own
> view, obviously, is tha!
>> t we're all subject to psychological explanation, though that none of
> us should be reduced to such explanations.)
>>
>> I can easily agree with David that there has been a lot of simplistic
> reductionism vis-a-vis Thomas, someone I've always belileved, even
> as I
> opposed his confirmation even before Anita Hill, was a more
> interesting
> person that his critics portrayed or, most regrettably, that he
> himself
> portrayed in his disastrous testimony, prior to Anita Hill and
> presumably with the advice of his principal DOJ handler, Michael
> Luttig, in which he renounced practically everything he had said in
> speeches (because, after all, he was only mouthing the words
> written by
> speech writers).  But I also think it merits some psychological
> analysis to explain not only why he so vigorously opposes affirmative
> action (even though his race is the only plausible explanation for why
> someone so conservative as he he was nominated and confirmed, given
> the
> political balance in the Senate at the time), but why he in fact turns
> away from the systematic cruelty that is endemic to the American state
> prison system.
>>
>> sandy
>> ________________________________
>>
>> From: conlawprof-bounces at lists.ucla.edu on behalf of
> DavidEBernstein at aol.com
>> Sent: Sun 6/3/2007 9:29 AM
>> To: curtism at bellsouth.net; s-gerber at onu.edu;
>> CONLAWPROF at lists.ucla.edu
>> Subject: Re: NYTimes.com: The Next Big Thing in Law? The Harsh
> JurisprudenceofJustice...
>>
>>
>> The review states: "They offer a wealth of insight, but they have no
> answer to the central enigma he poses: why the justice who has faced
> the greatest hardships regularly rules for the powerful over the weak,
> and has a legal philosophy notable for its indifference to suffering."
>>
>> It has irritated me for many years that Justice Thomas is
>> supposedly an
> "enigma" because he is a black man with a conservative outlook on life
> and judicial philosophy.  Ever since he was appointed to the USSC,
> there have been so many articles trying to "explain" Justice Thomas.
> How about this one: he is a thoughtful person who read a lot out of
> intellectual curiosity, and eventually became persuaded that certain
> ideas were right, and others were wrong--just like all of the white
> Justices!  Imagine that!  It's well-known that Thomas has been subject
> to a host of intellectual influences, ranging from Richard Wright to
> Thomas Sowell to his grandfather to Ayn Rand to Ken Masugi and so on.
> We don't need to "explain" Justice Thomas any more than we need to
> "explain" Justice Scalia, Chief Justice Roberts, or Justice Alito.
> Where are all the psycho-biographies explaining how a nice son of
> Italian immigrants could someone become a crazed right-winger?
>>
>> I vote for started to treat Thomas like an individual human being who
> has a well thought-out understanding of the world (which, like may
> such
> understanding, no doubt has its contradictions), even if one strongly
> disagrees with it, rather than as a representative of his race gone
> astray.
>>
>>
>>
>>
>> _______________________________________________
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>>
>
> ----------------------------------------------------------------------
> Scott Gerber
> Ohio Northern University Law College
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
> http://upress.kent.edu/books/Gerber_S.htm
>
>
> _______________________________________________
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