boerne -Reply

[Sanford Levinson]

Pat Schiltz writes:

AI don't think
>we should read too much into Thomas's decision not call for the overturning
>of an important and relatively recent decision written by his closest ally
>on the Court, particularly when such a call would probably be futile....

a)  the fact that Smith was "written by his closest ally on the Court" does
not strike me as a "reason" that anyone not a rampaging legal realist (which
I sometimes am) can credit.  Given the "rule of law" pretensions of Scalia
and Thomas, I find it remarkable that this would be offered as a "reason"
for failing to call for briefing and argument in an area of obvious importance.

b)  I am not aware that Justice Thomas is very much impressed by "futility"
in offering arguments for our consideration.  See, e.g., his concurrence in
the Brady Bill case, or his call for the elimination of the dormant commerce
clause doctrine.

Sandy Levinson