Clarence Thomas: Nino Scalia Should Resign

Well, not quite.  But just look at the quotes.

Clarence Thomas, in a recent speech to Georgia attorneys:

“This job is a humbling job,” he said. “It’s the end of the food chain. And some people can do it, and some can’t. But what it teaches you is that you don’t have all the answers. The people for whom this is an easy job are those who have never done it.”…..

Thomas said one of the most important lessons he learned came early on when Justice Lewis Powell, who retired about four years before Thomas was appointed in 1991, told him something he’ll never forget.

“When you think you belong here, it’s time for you to leave.”

Hmmm..someone who thinks he knows just about everything, and doesn’t bother to do the hard work involved in being a judge?  That would be Justice Scalia:

We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.

“When you think you belong here. it’s time for you to leave.”  Keep that in mind, Nino.  For the last decade or so, it’s become pretty clear that Thomas is a better judge than Scalia, regardless of what you think of their politics (which I obviously don’t think much of).  Thomas is more consistent intellectually.  Maybe it’s because he’s a little more humble.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

16 thoughts on “Clarence Thomas: Nino Scalia Should Resign”

  1. It’s hard to say if Thomas or Scalia is a better judge. Scalia is a lot smarter. When he thinks something through and isn’t feeling snarky that day, he can do some excellent work. But, like William O. Douglas, he often mails it in. Thomas does seem to have better work habits. (I never held his silence against him; I was told my first week in law school that oral arguments seldom mean much, except to check that the lawyers have done their homework.)

    To be fair to Scalia, it is hard to see how the death penalty can be unconstitutional, since the Constitution explicitly mentions it. (“Life, liberty, or property.”) OTOH, it is easy enough to see how our current death penalty system fails to provide due process, apart from its inherent barbarism.

  2. ANY death penalty system fails to provide due process, because proof of guilt beyond a reasonable doubt should not be deemed sufficient to take a life. Only proof beyond any doubt should be, and proof beyond any doubt is not possible for human beings. Granted, the framers of the Constitution did not see it that way, but they put nothing in the Constitution that binds us to the way they interpreted it. We have expanded due process rights before.

    I do not mean to imply that, if proof beyond any doubt were possible, then the death penalty would be constitutional.

  3. “Scalia is a lot smarter.”

    Evidence, please?

    Scalia is vastly overrated as an intellect. The not-very-bright people who make up most of the commentariat mistake smug snarkiness for actual intelligence. If you actually read a Scalia opinion you’ll almost inevitably find that it’s totally devoid of logic and reasoning. Scalia’s writing is a philosophical void, a mess of facially contradictory post-hoc rationalization without any intellectual merit at all.

  4. The death penalty could be deemed ‘cruel or unusual’, thus unconstitutional.
    Or found to be applied in a discriminatory or arbitrary manner (aka equal justice ).

  5. When I went to law school, I uncritically assumed that Thomas was a dumber Scalia clone. During the first year, I realized that Thomas’s opinions were always simpler (this is praise; it’s easier to write complicated opinions than simple ones), clearer, more intellectually honest, and more consistent than Scalia’s. Like you, I disagree with both, but it’s always good seeing other liberals rejecting the cliche “Scalia brilliant, Thomas stupid” line just because Scalia turns a nice snark.

  6. Scalia is a petulant little man who has learned to put multi-syllabic words together to make silly jurisprudence based on his own whim and caprice!

    He should definitely resign and send each and every American citizen a personal apology letter asking for forgiveness, for wasting our precious time all these years!

  7. Only in the fantasy universe of the academic left would this subject even come up. Scalia is going nowhere. I expect he is likely to utilize the lifetime nature of his appointment. And there’s no way anyone from the Court’s moderate to conservative side is going to leave while a Democrat is President.

  8. “But what it teaches you is that you don’t have all the answers. The people for whom this is an easy job are those who have never done it.”

    Is this why he is famously silent during oral arguments?

  9. Whaaat?? Jonathan, haven’t you skewered Thomas’ opinions numerous times on this blog? I can’t remember the case, but I think it had to do with the case of some girl who was kicked out of school for taking advil (“No-tolerance drug policy”) and Thomas sided with the school district.

    It might have also been some other case, but my impression was that it had to do with civil liberties. In any case, I find it hard to believe that Thomas is a better judge than Scalia.

  10. @Bruin Alum —

    Actually, that was Mark, although I agree with his view; remember, Scalia agreed with that opinion. The issue isn’t whether both justices write horrid opinions; they both do. The question is who is more intellectually consistent and who writes opinions that, even under their own assumptions, are more internally consistent and coherent. I think Thomas is. Gonzales v. Raich might serve as a decent example.

  11. Henry & MobiusKlein,
    I can’t agree with you. Most principles of statutory interpretation leave wriggle-room, but no lawyer wants to argue that words have no meaning. “Cruel and unusual punishment” could easily be read to exclude the death penalty on its own. But it admits of alternative readings. And it must. There is that little thing about “life, liberty, or property,” which was adopted simultaneously (and readopted in the 14th Amendment.) If you just ignore any language you don’t like, then there really isn’t anything left to legal interpretation. And “proof beyond any doubt” is not in the Constitution, so you don’t even have two contradictory texts to consider.
    The Constitution is not what we want it to be. It has some autonomy from the policy preferences of its interpreters. (Okay, I’m not sure about Roberts.)
    I could live with a reading of the Fifth Amendment that restricts the death penalty extraordinarily. (Indeed, I’d be happy with it.) Such a reading is linguistically permissible. But I don’t see how we can read the death penalty completely out of the Constitution without admitting that legal texts have no meaning beyond the preferences of their interpreters. In which case, why bother with them? And why call their interpreters judges, when they have assumed an unlimited legislative function?

  12. Ebenezer,
    You’re right that “proof beyond a reasonable doubt” is not in the Constitution,” yet the Supreme Court today would hold that to require only a lesser standard, such as “preponderance of the evidence,” for a criminal conviction, would violate due process. Why couldn’t it say, therefore, that a greater standard, namely the impossible “proof beyond any doubt,” is required before the state may kill a defendant? In advocating that, I am not seeking merely to impose my policy preferences. I am making a legal argument, based on the meaning of “due process.” Of course, I have not fleshed out that argument, and this is not the forum in which to do so.

  13. I’d have to say that, while I expect Scalia to decide in ways I approve of more often than, say, Sotomayor, I regard Scalia as a partisan hack. Thomas, on the other hand, while I occasionally disagree with him, appears to be willing to let his legal principles lead him to conclusions he doesn’t like from a policy standpoint. (Something you don’t really see that often in the rest of the Justices.) I admire that in a jurist, even if the fact that their legal principles aren’t the same as mine means those conclusions occasionally won’t be ones I like.

    It’s a pity Thomas doesn’t have much company on the Court in this regard, and that Scalia has so much company, for all that they’re not all partisans of the same party.

    Now, that said, I will say this in defense of Scalia: A lot of the “controversial” cases involve matters of constitutional doctrine any Justice who’s not brain dead should already understand, and have fixed opinions about. There really isn’t much to do in those cases, except tally up the votes. The cases a Justice has to work at are mostly NOT going to involve public controversies the Justice will already be well acquainted with.

  14. This sort of self-awareness failure has a long history on the court. Back in the late 70s, it was Rehnquist who was railing against the dangers of vesting so much power in nine lawyers with virtual life tenure.

  15. The main fact about judging is that it requires judgment–the ability to recognize an issue’s complexity, see all its aspects, weight them appropriately, and come to a conclusion.

    Unfortunately, Clarence Thomas lacks judgment. He grinds out dissent after dissent, insisting that some question is simple … which it is, if you only see it from the perspective that he recognizes. He has repeatedly, and spectacularly, failed the simple but revealing test for a person’s judgment: can the person convincingly explain and defend the arguments for a contrary conclusion?

    And that’s especially unfortunate at the Supreme Court, since issues make it there precisely because they’re complicated. (Lower appellate courts resolve the simple ones.)

  16. “For every complex problem there is an answer that is clear, simple, and wrong.”

    The problem with that quote, is that for many simple problems, there are lawyers who don’t LIKE the clear, simple, and right answer. And so they’ll insist the problem is complex.

    Their existence doesn’t obligate anybody else to pretend that the problem, and it’s solution, are complex.

    There are a lot of constitutional questions out there that are actually quite simple. But pretending they’re complicated is easier than amending the Constitution to make the answer somebody prefers the right one, so a lot of areas of constitutional law are deliberately made artificially complex, in order to justify arriving at wrong answers. Thomas refuses to take part in that, so he gets labeled a simpleton.

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