Why do I ask? Because of this comment thread discussing Supreme Court Justice, Clarence Thomas, in a post about Joe Biden’s Presidential ambitions:
[side harumph: Justice Thomas isn’t a “lightweight intellect.” He’s just very very wrong.]
He may not be a light weight intellect, but he seems to be quite lazy and uninquisative, seemingly content to let his preexisting views inform the outcomes of the cases coming before him rather than investing the skull sweat needed to determine the just and proper decision.
Blogger X
And you think RBG and Kagan begin each case from the position that the earth is newly-formed? If an abortion case came to the Court, they’d start from scratch in their analysis?
Please recognize what you’re doing by calling the only African American on the Court “quite lazy and uninquisative [sic].” It’s unseemly.
Unseemly? Really?
If there are special rules on Daily Kos, for debate about top shelf figures like Clarence Thomas, it would be good to know them up front. I wouldn’t bring it up, probably, except that Blogger X has a very long history on this site as a Front Page contributor and longtime, featured, Daily Kos legal writer. So, the question in the title is meant not as snark, nor as provocation; nor is the question meant as anything other than merely inquisitive.
If Joe Biden runs for President, then Democrats will discuss Clarence Thomas. It is inevitable. Thomas’s presence on the Supreme Court may constitute the most enduring and dreadful failure of Joe Biden’s long political career. Democrats will necessarily discuss Justice Thomas, either as Biden defenders inclined to minimize Thomas’s shortcomings, or as supporters of candidates opposing Biden, inclined to fully expose Thomas’s shortcomings, if not exaggerate them. But the subject is inescapable.
So, it feels legitimate to ask just what the terms might be, for this kind of debate among Kossacks?
I invite the community to argue this out in the comments. I really do need to become more comfortable with either my existing views on this, or, conversely, reconcile to changing my views on this issue if Blogger X’s apparent outlook wins the debate.
Jump the fold and I’ll kick off the conversation.
Let’s begin the discussion by explaining why Blogger X’s reply did not convince me that I had written anything at all objectionable, much less unseemly, in describing Justice Thomas as lazy and uninquisitive. Such judgments concerning figures like Justice Thomas, if true, far exceed, in importance, the obscuring effects of any invidiously discriminatory racist tropes that white supremacists have long used to objectify black people as lazy. With someone as important as a Supreme Court Justice, withholding such a judgment, even when merited, reeks of the soft bigotry of low expectations. No description is unseemly, unless untrue or used in an unseemly context or manner.
Please note how much emphasis my view attaches to the importance of objective accuracy. Anyone who called Barack Obama lazy is a racist pig. But if we didn’t already know, the Presidency, of the objectively lazy Donald Trump, has taught more of us that those, who reach the nation’s top positions, hold demanding, top tier jobs, where there is no room for objective laziness. The Supreme Court is as much that kind of job as the Presidency.
Blogger X’s suggestion, that Justices Kagan and Ginsburg approach their work in the same way as does Justice Thomas, made me laugh, particularly the abortion example. I totally respect Blogger X as a legal observer whose writing on this blog has so often cast a clear and discerning eye upon the business of the U.S. Supreme Court as well as other legal issues. However, I have my own perspective, though I retired from law practice some years ago.
I had been practicing law 13 years, and admitted to the U.S. Supreme Court Bar for 9 years when the Clarence Thomas confirmation hearings happened. During those years, I had conducted Constitutional Law cases involving Civil Rights, Election Law, Interstate Commerce, Due Process and other issues, including substantial practice in U.S. District and Circuit Courts of Appeals, as well as numerous matters in the U.S. Supreme Court including in support of oral argument. I’ve had my eye on Clarence Thomas since the beginning.
I’m not the only one who gets it that Justice Thomas, sadly, does not work hard to get his job right and doesn’t care, except about his pernicious ideology. A few years ago, The New Yorker published the following under the title, Clarence Thomas’s Twenty-Five Years Without Footprints:
Thomas is not a conservative but, rather, a radical—one whose entire career on the Court has been devoted to undermining the rules of precedent in favor of his own idiosyncratic interpretation of the Constitution. By his own account, Thomas is an extreme originalist, one who is guided exclusively by his own understanding of what the words of the Constitution mean rather than what the other hundred and eleven people who have served on the Court in its history have judged them to mean. His vision is more reactionary than that of any Justice who has served on the Court since the nineteen-thirties, and his views are closest to those of the Justices who struck down much of the New Deal during that era.
I agree. My own legal career continued another 23 years after Justice Thomas was confirmed and I handled my fair share of litigation controlled or influenced by the Supreme Court decisions he wrote or carried with his vote. The New Yorker’s assessment of Justice Thomas mirrors my own. This helps lay bare the false equivalence in Blogger X’s suggestion that Justices Thomas, Ginsburg and Kagan would all approach an abortion case the same way.
Justices Ginsburg and Kagan would begin deliberations in any abortion case from the premise that Roe vs. Wade, Casey, etc. are settled legal precedents on the subject of the Constitutional protection of women’s reproductive rights. They would respect age old principles of Common Law that enabled the Supreme Court, over many years, to employ the principle of stare decisis to gradually adapt an 18th Century Constitution into the basis for governing the entirely different American society of the 21st Century.
In contrast, when considering such a case, Justice Thomas would begin from the premise that neither the 18th Century authors of the Constitution, nor the 19th and 20th Century authors of the various amendments, ever mentioned abortions. Therefore, the Supreme Court should just stay the heck out of it and let States do anything they want to make women have babies if they happen to conceive. Justice Thomas rarely has to crack a book to know how he will vote. If he gets confused, he can ask his wife.
So, I’m not yet convinced that I’m unseemly to accuse Justice Thomas of being lazy and uninquisitive. I’m trying to keep an open mind, but It’s not my fault that Justice Thomas is the only African American (sic) on the Court, nor is it my fault that he is lazy and uninquisitive, But I will review and consider any comments with explanations of why I ought to change my view.