The eminent legal scholar and Democratic Senate Leader Harry Reid of Nevada has opined that Justice Clarence Thomas should not be elevated to the position of Chief Justice, because he is “an embarrassment” to the Supreme Court. It’s not that the only black Justice is a conservative, mind you; Senator Reid’s denigration rests on a neutral criterion: “I think that his opinions are poorly written.”
Pressed for an example of a inferior writing, the Senator singled out a routine reversal of a Ninth Circuit decision, Hillside Dairy Inc. v. Lyons (2003). The Left Coast Loony Circuit had upheld California’s attempts to compel out-of-state producers to abide by its milk price-fixing scheme. A unanimous Supreme Court vacated and remanded. Justice Thomas wrote a one paragraph concurring opinion in which he dissented from one part of the majority opinion. Those few sentences drew this dispraise from Senator Reid (transcription errors corrected):
In that case you had a dissent written by Scalia and a dissent written by Thomas. [It’s] like looking at an eighth-grade dissertation compared to somebody who just graduated from Harvard.
Scalia’s is well reasoned. He doesn’t want to turn stare decisis precedent on its head. That’s what Thomas wants to do. So yes, I think he has written a very poor opinion there and he’s written other opinions that are not very good.
Except that, as James Taranto noted yesterday, Justice Scalia didn’t write an opinion in Hillside Dairy. Influential lawblogger Eugene Volokh has asked the Senator’s office to explain. I imagine that an intern in Reno is right now frantically searching Lexis for a Thomas opinion that can be substituted as the centerpiece of the attack. (He might try the uncharacteristically off-the-point dissent in General Dynamics Land Systems, Inc. v. Cline.)
Hallucinating a Scalia opinion is not Senator Reid’s only mistake. Brief though it is, the Hillside Dairy concurrence illustrates one of the reasons why Mr. Thomas is a first rate judge: When his legal analysis clashes with his political opinions, he follows the former.
The substantive question on which he differed from the majority was the impact of the Commerce Clause on the states’ regulatory powers. Supreme Court precedent holds that Congress’ authority to regulate interstate commerce almost completely excludes state regulation, so that the Commerce Clause rather than the Import-Export Clause is the true guarantor of free movement of goods and services in the national market. The leading cases espousing this position were handed down by what are now viewed as right wing, laissez-faire Courts zealous to restrain state legislatures from interfering with freedom of contract. They have long been popular with conservatives and libertarians. I’d be extremely surprised if Justice Thomas didn’t share that agreement with the doctrine’s results. Nevertheless, he (and Justice Scalia, equally spurning stare decisis) have argued that the Court’s view of Congress’ “dormant commerce power” is unsupported by the text of the Constitution and ought to be abandoned. When was the last time that a liberal Justice put judicial principle above political preference?
My own evaluation of Justice Thomas’ work is based primarily on his opinions in ERISA and employee benefits cases, the area of law in which I practice. It is a good test of jurisprudential acumen, for no member of the Court has much ERISA expertise. Ability to make sense when venturing into unfamiliar legal terrain is a vital skill for Justices, who are the final arbiters of all statutory and common law but cannot possibly possess antecedent mastery of the whole.
By this criterion, Justice Thomas is one of the Court’s best jurists. His ERISA opinions are, with rare exceptions, clear, pithy and accurately reasoned. I particularly recommend for perusal his majority opinions in Hughes Aircraft Co. v. Jacobson (1999), which swept away years of confusion about the meaning of ERISA’s exclusive purpose rule, Egelhoff v. Egelhoff (2001), which strengthened and clarified ERISA’s prohibition against state interference with employee benefit plan administration, and Aetna Health Inc. v. Davila (2004), which reduced the murkiness of the Court’s conflicting rulings on the scope of ERISA preemption, his dissents in John Hancock Mutual Life Ins. Co. v. Harris Trust & Savings Bank (1993) and Varity Corporation v. Howe (1996), and his concurrence in Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon (2004), where he catches a fellow Justice in egregious circular reasoning and displays his talent for close reading of the statutory text. I don’t think that any fair observer, including one who disagreed with Justice Thomas’ conclusions, can deny that he argues well and writes forcefully. The contrast with many of his colleagues’ blurry, meandering forays into employee benefits law is striking.
Whether Senator Reid has ever read a Thomas opinion is doubtful. The natural stance for a hostile commentator who was acquainted with the Justice’s oeuvre would run along the lines of “well-written nonsense” (the sort of thing that people like me say about people like Michael Kinsley). The Democratic leader simply assumes his target’s semi-literacy.
It isn’t hard to figure out why he does that. Years of “affirmative action” have ingrained in many minds the presumption that any black man who holds a position that requires high intellectual ability isn’t genuinely qualified; he must be the beneficiary of racial preference. Unfortunately, the presumption is occasionally correct. This is not one of those occasions. While Clarence Thomas’ résumé may have been thinner than most Court nominees’, his record demonstrates that the first President Bush chose him for his ability rather than his skin color. He deserves better than what Jim Geraghty sharply characterizes as “the hard bigotry of impossible expectations”.
Update (1/20/05): Apparently never having heard the maxim about holes and stopping digging, Senator Reid has compounded his offense with a new round of highly dubious statements about Justice Thomas. Eugene Volokh has details.
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