No surprise for those of us familiar with his oeuvre. I suppose that the kindest thing that can be said about Toobin’s latest is that he has graduated from sliming the dead to smearing the living; the latter does require more courage, after all. But despite the (exceedingly) modest uptick in bravery, Toobin’s attack on Justice Clarence Thomas still falls short. Damon Root issues a completely justified verdict on Toobin’s hatchet job:
. . . I’ve attended a number of oral arguments in the past two years and I’ve routinely seen Thomas leaning forward, watching the lawyers (and his colleagues), and even conferring quite enthusiastically with both Justice Stephen Breyer (to his right) and Justice Antonin Scalia (to his left). In fact, during the first day of the March 2012 Obamacare oral arguments, which centered on whether an 1867 tax law barred the legal challenge to the health care law from going forward, I watched Thomas and Breyer together poring over a massive book that appeared to be a volume of the U.S. tax code. What were they up to? It’s possible Thomas was suggesting a line of questioning for Breyer to use. After all, as Thomas told an audience at Harvard law school, he sometimes helps generate Breyer’s material. “I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” Thomas said. “So you can blame some of those [Breyer questions] on me.”
Toobin is either himself guilty of not paying attention, or he is perhaps too eager to bend the facts in order to paint his opponents in an unflattering light.
So does Michael McGough:
As Toobin acknowledges, Thomas is a distinctive and occasionally influential thinker on the court, the “intellectual godfather” of important decisions even when he doesn’t write the majority opinion. So he seems to be doing the most important part of his job.
(Toobin also focuses on Thomas’ body language in the courtroom, writing that he looks up at the ceiling and strokes his chin — proof that he’s “not paying attention.” But other justices occasionally look distracted. Sometimes they even nod off.)
My theory is that Thomas has remained silent all these years to confound his critics. It certainly isn’t because he is tongue-tied or inarticulate. If you’re desperate to hear the sound of his voice, YouTube and C-SPAN preserve some of his comments in public settings outside the court.
Whatever the explanation, Thomas’ silence is strange. But disgraceful? A dereliction of duty? To quote Chief Justice John Marshall: “This is too extravagant to be maintained.”
Rick Hasen, who is certainly not aligned with Justice Thomas when it comes to political orientation or jurisprudential philosophy, has a mature take on the issue, one that Toobin himself should have adopted as a lawyer who is supposedly savvy about the ways of appellate law in general and the Supreme Court in particular:
. . . Justices should be judged primarily by their opinions. This is the place in which the Justices’ views are translated into legal binding pronouncements, or into well thought-out arguments that the Court has headed off in the wrong direction.
Judging Justice Thomas primarily by his opinions, there is no good argument that Justice Thomas is a “disgrace.” Quite the opposite. As Toobin acknowledges, “For better or worse, Thomas has made important contributions to the jurisprudence of the Supreme Court. He has imported once outré conservative ideas, about such issues as gun rights under the Second Amendment and deregulation of political campaigns, into the mainstream. Scalia wrote District of Columbia v. Heller, which restricted gun control, and Kennedy wrote Citizens United v. Federal Election Commission, which undermined decades of campaign-finance law, but Thomas was an intellectual godfather of both decisions.”
Indeed, I have written an extensive analysis of Justice Thomas’s leadership in conservative thinking in the campaign finance area. There is virtually nothing Justice Thomas and I agree upon in this area. But his ideas are respectable, and the intellectual heft in his opinions formidable.
Even if we were going to focus on oral arguments (which we should not), how is Justice Thomas any more “disgraceful” at oral argument than Justice Ginsburg napping or Justice Scalia deriding a litigant for reading his opening at oral argument?
I will close by noting two things: (1) Jeffrey Toobin should not be trusted to give an intelligent, dispassionate and fair analysis of legal issues; and (2) if Toobin really wants to write about a justice who neglected his duty, he could pen a few lines about Harry Blackmun. (Thanks to Todd Zywicki for the link.)