Quality of Justice Thomas's work
SLevinson at law.utexas.edu
Thu Oct 4 11:15:17 PDT 2007
Sam may be giving me too much credit, or I may simply have written too quickly. I don't have a worked out theory of "technical quality." What I was thinking of was simply whether the opinions passed the pragmatic tests we use when deciding whether an opinion displays that mysterious (and perhaps overrated) quality called "legal craft," i.e., the ability to mobilize the traditional modalities of legal argument in order to make more-or-less coherent arguments even if one disagrees with them.
I also don't have a well-worked-out position on rules v. standards. I do believe that rules may sometimes be more efficacious in generating behavior from hierarchical subordinates when the subordinates might not otherwise comply with the superior courts agenda. I also found SDO'C unusually vexing with regard to figuring out what, if anything, followed from her "analysis." But that is more an expression of animosity toward O'Connor than a general commitment to a "law of rules."
From: Samuel Bagenstos [mailto:srbagenstos at wulaw.wustl.edu]
Sent: Thu 10/4/2007 9:26 AM
To: Sanford Levinson; Earl Maltz; conlawprof at lists.ucla.edu
Subject: RE: Quality of Justice Thomas's work
I find this a very interesting discussion. I tend to agree with the general point here - that, although I disagree with a lot of his jurisprudence, Justice Thomas doesn't get the respect he should as a judge. But I'm interested in the criteria of "technical . . . quality." Sandy suggests that opinions that adopt rules are inherently of a higher technical quality than are opinions that adopt standards. Do you really mean that, Sandy? The rules-standards debate is endless, but the standards people have made lots of arguments, and there are a lot of serious people in their ranks.
One common understanding of "technical quality" of opinions invokes concerns about judicial craft and facility with precedent. I don't think Justice Thomas's opinions rank very high on the "facility with precedent" metric, but I'm sure he'd argue that the whole point of his jurisprudence is that the Constitution (as he understands it) is more important that the precedents interpreting it. (I assume we're just talking about his constitutional opinions on the con law listserv, but the equivalent point could apply to his statutory opinions.)
Another common understanding of "technical quality" relates to the opinions' internal logic. On that score, I'd say that Justice Thomas's opinions have all of the analytic problems of the kinds of formalism and originalism to which he adheres. But lots of people believe that these sorts of formalism and originalism serve important values and that the analytic problems are a cost of doing business (and in any event, no greater than the analytic problems with other modes of constitutional interpretation).
Yet another common understanding of "technical quality" is capacity to persuade those who are not already persuaded. I don't think Justice Thomas's opinions do terribly well on this score, but I'm not sure anyone else's do any better.
So, what are the criteria of "technical quality"? And what is their relation to the substance of a judge's jurisprudence?
Samuel R. Bagenstos
Professor of Law
Associate Dean for Research and Faculty Development
Washington University School of Law
One Brookings Drive, Box 1120
St. Louis, MO 63130
(314) 935-9097/6856 (voice)
(314) 935-4029 (fax)
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Thursday, October 04, 2007 8:45 AM
To: Earl Maltz; conlawprof at lists.ucla.edu
Subject: RE: Quality of Justice Thomas's work
I think that Earl is correct. Save for diagreement on the outcomes, there is certainly no reason to denigrate Thomas's
opinions relative to those of his colleagues. And, if one purpose of Supreme Court opinions is to supply genuine guidance to lower courts as to the likely outcome of similar cases, Thomas certainly does that far, far better than Sandra Day O'Connor ever did. There is no need to kill a sheep and read its entrails to figure out what Thomas believes about a general issue, as distinguished from the very particular case in front of him.
From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
Sent: Thu 10/4/2007 8:36 AM
To: conlawprof at lists.ucla.edu
Subject: Quality of Justice Thomas's work
The publication of Justice Thomas's autobiography has (among other
things) once again focused attention on the quality of his work on
the Supreme Court. My impression is that, among the academic
community, even those who consider Thomas's jurisprudential worldview
to be extreme or even nutty often concede that, in purely technical
terms the quality of his opinions is generally quite high. I'd be
interested to hear impressions on that point from those who strongly
disagree with the results that he reaches.
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