Publius, of Legal Fiction, has written an entry about the uproar over Sen. Reid's statement that Clarence Thomas has been an "embarrassment to the court". It's worth reading. While he's harsher on Thomas than I would be, he does hit on an important distinction in how one can judge a judicial opinion:
As I said, Reid's error was in using the word "embarrassing," as it implies that Thomas's opinions are somehow unprincipled or intellectually lightweight. That's not true at all. Thomas's jurisprudence is the most coherent and principled of all the Justices. But that's not to say it's good. One can be principled and wrong (Scalia, Thomas). Or, one can be unprincipled and right (O'Connor, Kennedy).Here's the problem. When people talk about a Justice being "right" or being "good," they could be talking about one of two very different concepts. On the one hand, they could be talking about the soundness and coherence of the Justices' legal analysis. On the other hand, they could be talking about the political desirability of that analysis. These are different animals and should be treated as such. Scalia and Thomas (and Souter on the left) are the "best" Justices in terms of their coherence and faithfulness to sound legal reasoning. Kennedy and O'Connor are dreadful - their principles never constrain them from reaching a decision that matches their political preferences. However, as a matter of politics, I think Scalia and Thomas's conclusions are dreadful, while I tend to agree (politically) with the conclusions of O'Connor and Kennedy.
Remember that sound legal analysis can usually be applied to reach mutually opposing conclusions depending on your starting premises and assumptions (and that's where political preferences often enter the process). You can have a principled castle built upon a pile of crap (e.g., originalism - it's principled, coherent, and premised upon crap).
Turning back to Thomas, I would argue that even though he's principled, he has produced some truly truly horrible opinions, far beyond those of Scalia (who I have a weird love/hate thing for). What's amazing is that the theoretical underpinnings of some of Thomas's opinions owes much more to the French Revolution than any Burke-style conservatism (but I'll get to that in a second). The first, and by far the worst, of these opinions was his concurrence in Hamdi. This was one of the post-9/11 cases involving the detention of a U.S. citizen who was unilaterally declared an "enemy combatant" and deprived of access to the courts. Of the nine Justices, only Thomas believed that Hamdi had no due process rights because such a decision was part of the president's war powers.
I agree with him that Thomas' dissent in Hamdi is his worst opinion. I think it is neither principled nor correct, and it is extraordinarily dangerous on top of that. And I can very much relate to his having a love/hate relationship with Scalia. I feel exactly the same way. He's the justice I disagree with the most often, and at the same time the one I found more interesting and more compelling. I think he's the smartest justice on the court, and the one who would be the most interesting to spend time with. At the same time, I am often harshly critical of his legal reasoning. Thomas is, if anything, more consistent than Scalia, and more likely, I think, to write a principled opinion that goes against his own views and still stick with it because he believes it's principled.
On the question of Scalia's statement that Thomas does not believe in stare decisis, I have mixed feelings on it. In the abstract, I tend to agree with him. If the New Deal commerce clause cases were wrongly decided, then overturn them. We should not stick with an error just because it was made a certain time ago, any more than we should allow oppressive laws to stand merely because they are traditional. Slavery was traditional too. I'm much more concerned about doing the right thing than I am about respecting the mistakes of the past. But of course I won't always agree with specific decisions he would seek to overturn. Overturning Everson and no longer applying the Establishment Clause to the states would be wrong both on principle and on its effects. The case was correctly decided and Thomas is virtually alone in wanting to overturn it, as he very well should be.
Picking out decisions to disagree with is trivially easy for any of the 9 justices on the court. But merely disagreeing with a decision, or with a series of decisions, is not justification for claiming anyone is an embarrassment to the court. While Thomas is often wrong, his opinions are, as Publius notes, by and large consistent, coherent, principled and well written.
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There's too much hangup on the term "embarrassing," which could have been "disappointing," and "poorly written" which could have been "poorly conceived" being too much based on his originalist view of the Constitution.
That's my main beef. He shows great respect for the original document, but rather short shriff with many of the ammendments, as if they shouldn't have been added in the first place. He certainly does everything to minimize their effect by interpreting them to the least degree possible. Since many of these ammendments extend rights, he wants to restrain there effect as much as possible, as if the less rights we have, the better. B
I've recently been pondering the virtues and vices of stare decisis as well. But, I think the Court's criteria might be about right. If the New Deal commerce clause analysis was wrong it should be overturned and I don't think stare decisis would necessarily prevent that. People weren't particularly reliant on it, the factual underpinnings changed, etc. However, when the Court extends a fundamental right to a group of people (Griswold, Roe, Lawrence, etc.) those people become reliant on it. The problem is when some members of the court don't see how people have come to rely on a right. In Casey, for example, the dissenters argued that women hadn't become reliant on Roe b/c they always knew unwanted pregnancy could be a result. The majority, however, I think got it right by pointing out that women had come to rely on their ability to control their reproductive health. Also, Scalia had no problem saying stare decisis shouldn't apply to Roe but thought it should apply to Bowers (which I think has been the basis of even more criticism). Overall, I think the problem is that the justices' underlying philispohical premises for applying stare decisis are totally different.
I'd also agree w/your opinion of Thomas and Scalia. I think Thomas is off his rocker most of the time, but he is consistent and I'll give him credit for that. I almost never agree w/Scalia, but I have to say I loved his dissent in Hamdi. Nothing like Stevens and Scalia writing an opinion together.