Menu

Luke Gilman

Continuous Project, Altered Occasionally

Considering Justice Thomas on Precedent

For the law geeks among us, U.S. Supreme Court Justice Clarence Thomas recently gave an extended interview Judge Diane Sykes of the 7th Circuit U.S. Court of Appeals, that is worth a listen.

I realize there will be those whose perception of Justice Thomas will never escape the lens of his confirmation hearings and an oversimplified conflagration of originalism, conservatism and race politics. Putting such things aside, if you can, I think will reveal, sooner or later, a deeply interesting Justice, who has to some degree, sidestepped the ideological zeitgeist to a much greater degree than the popular caricature of the man would suggest. Prof. Akhil Reed Amar has suggested a similarity between Thomas and Hugo Black as Justices whom history has appraised better than did their contemporaries; I might also include the elder Justice Harlan in such a comparison. Consider this exchange:

Judge Sykes: I think it is fair to say that you are the Justice who is most willing to reexamine the Court’s precedents.
Justice Thomas: That’s because of my affinity for stare decisis.
[laughter]
Judge Sykes: That’s what I was going to ask you about, stare decisis doesn’t hold much weight with you?
Justice Thomas: Oh it sure does. But not enough to keep me from going to the Constitution.
….
Judge Sykes: I did want to ask you about your approach to writing separately. You do write separately quite a bit.
Justice Thomas: Oh, I do?
Judge Sykes: Yes, you do and you really forge your own path in those separate opinions. Just this past term, for example, one of your separate opinions on the application of the Sixth Amendment to the jury trial right … became the majority view of the court, but others of your separate opinions may be less likely to command a majority view any time soon.
Justice Thomas: Maybe like a fine wine, it just needs aging.
Judge Sykes: Is that your philosophy of separate opinion writing?
Justice Thomas: Hey, Harlan it took him 60 years and he eventually won Plessy. You know, you ask a very good question. I think that I may lose, but I think I’m obligated and in fact encouraged by my colleagues – if you believe that, write it. I try not to do it in a way that’s not polite or respectful, but I think that someone should have kept writing that segregation was wrong, and regardless of what the precedent was, then, I think you have to say certain things.

Originalism, in our modern conception, is a judicial proxy
for political conservatism, and there is much in Thomas’ jurisprudence to support that presumption, but isn’t it equally plausible – and how have I not seen it before – that a descendant of slaves, raised in Georgia in the 50’s and 60’s would have little deference for a

I had never connected Thomas’ Consider then, the Supreme Court Justice, for whom cases are, as Thomas described them in another interview, the caboose of the legal train, the last decision in the line.

Two new bios on America’s first celebrity lawyer Clarence Darrow

Two new bios on America’s first celebrity lawyer Clarence Darrow:

“He was Jefferson’s heir, his time’s foremost champion of personal liberty, raging against the concentration of wealth and power that had accompanied the nation’s industrialization. But Darrow also thought of the law as blood sport. He shamelessly seduced juries with his common man routine — the rumpled suits and suspenders, the gentle country drawl — and his extraordinary closing statements, which he packed with philosophy, poetry and cheap emotions meant to make men cry. Those were the benign manipulations, Farrell argues. In some of his biggest cases Darrow bought the testimony he needed. And when he was apparently caught in the act in 1911, he hired as his counsel the most ruthless criminal lawyer he could find — a flashy-dressing, hard-drinking, anti-union conservative — because there was no point in confusing means and ends.

A similarly callous streak ran through Darrow’s personal life. He divorced his first wife because she wasn’t sophisticated enough; married his second because she doted on him; then took a mistress 21 years his junior. He cheated on his law partners too, handing them work he didn’t want to do and pocketing fees they were supposed to share. And for all his radicalism, Darrow loved a big payday: according to Farrell, he took on Leopold and Loeb, two sons of privilege, primarily because their parents offered him a $65,000 retainer.

Once the deal was struck, though, he gave them a brilliant defense, the horror of their crime buried beneath layers of psychological theory and wrenching appeals for mercy. When he was done, the tears came streaming down his face, because he meant every word he said. That was vintage Darrow, his onetime partner Edgar Lee Masters wrote, “with his young, old heart and … his infinite paradox,” inspiring, enraging, and in Farrell’s engrossing biography, marvelously alive.”