Stuart Buck, attorney and publisher, writes
I was impressed by Thomas’s conduct during his “high tech lynching” confirmation hearing. A couple of his decisions were excerpted in the Times and seemed to make sense to me. I gather that he writes his own decisions, while most justices let their clerks do that.
OTOH he doesn’t ask questions during oral hearings. Most people denigrate his intellect (at least his political opponents do.)
So, which is it? Is he real smart or not very smart?
I dunno. Send him a good IQ test and report back to us when you get the results.
I don’t think anyone will say the Thomas is not smart. The potential critisism is that he is not a very good Supreme Court Justice. That, I think, is a more difficult question to answer. Certainly he seems to be led around by Scalia on the sexy nightly news type cases, but perhaps he is a brilliant tax and ERISA guy. I am not qualified to say. Anyone who says Thomas is ‘stupid’ is displaying their ignorance.
That would be ‘criticism’. Thank you, I’ll be here displaying my ignorance all week.
minty, I can read actuarial articles or studies and disinguish between competent and excellent. I have no doubt that you can do the same for court decisions. I am seriously hoping to learn from your legal expertise.
I’ll say this for the guy: he can sleep through anything, as noted by his all-too-frequent snooze sessions during oral argument.
Smart? shrug Compared to who?
The rest of the Supreme Court. Other past SC justices.
He doesn’t write his opinions. That’s why he has law clerks.
On the contrary, minty, I have read that he does write his own opinions, although, as you say, that’s not the usual practice.
http://www.lewrockwell.com/kantor/kantor9.html
[quote]
Actually, even the “Scalia’s bitch” criticism isn’t quite right. True, Scalia and Thomas usually end up favoring the same outcome on hot-button cases, they often reach their conclusions using completely different modes of analysis. There are several opinions where they write separate dissents, or one writes the majority opinion and the other writes a concurring opinion. Scalia is the strictest of strict constructionists (a “textualist” to be precise) while Thomas approaches cases from more of a natural-law view.
My own view is that Thomas isn’t going to be remembered as a “great” justice, but he is more capable than his detractors imply.
And Gads: IIRC, Thomas has a well-known belief that in this modern era the real argument takes place in the briefs submitted by the lawyers for each side, and that oral argument is usually just for show. He’d probably do away with oral argument entirely if he could and just make his decisions on the briefs.
Well, here (PDF, sorry) is a list of all the SC Justices, going back to 1789. There are many names on the list that have probably been forgotten by all but the most dedicated court buffs. In fact, there are only a very few Justices that have had huge impacts. My guess is that Thomas will fall into the former group. Of course, it remains to be seen what his legacy will be. For all the criticism leveled at Thomas, I think one might fairly ask when was the last time Breyer or Ginsburg laid a golden legal egg?
The criticism that Thomas was merely Scalia’s dummy* was legitimate, IMHO, for his first 2-3 years on the bench. Thomas has been fairly independent in his analysis since then. Scalia (who does write many of his own opinions) is a far better legal analyst, however. Thomas tends to stop after asserting that’s how they did things back in 1791, whereas Scalia explains the rationale and the practical effect of the 1791 standard.
*Ventriloquism reference only.
Rhummy, I’ve paid more attention to Ginsburg than Breyer (though I’ve met Breyer and was pretty impressed with the guy), so I can answer your inquiry into her legal gems. She is extremely influential on women’s issues. Her majority opinion in the VMI integration case is absolutely pivotal to contemporary Equal Protection jurisprudence. Going down a list of her opinions, I see cases that I cite all the time, some of which are crucial to my practice (hello, Amchem). She’s no Oliver Wendell Holmes, but she more than holds her own on that court.
Dewey: Yeah, I can see how that’d inspire a guy to sleep. It’s a stunningly subtle protest against the irrelevancy of oral arguments in today’s Supreme Court culture. Gotcha.
My own personal back-of-the-envelope opinion, by the way, regarding the relative capacities of current Justices as accomplished/influential/skilled legal thinkers (based on what I’ve learned the last couple of years in law school, and notwithstanding whether I actually agree with them):
Tier I
Antonin Scalia
Stephen Breyer
William Rehnquist
Tier II
Sandra Day O’Connor
Ruth Bader Ginsburg
David Souter
Anthony Kennedy
Tier III
John Paul Stevens
Clarence Thomas
…In roughly that order. Breyer’s done some tremendous work in administrative law, both on and off the bench.
Friend December, I’m not sure what the point of all this is–save perhaps to give you the opportunity to use the phrase “high tech lynching” and once more dredge up the “is” fiasco. Justice Thomas is a member of the US Supreme Court. By definition he is just as smart as any other member of that court, except maybe the Chief Justice who may be just a little smarter, and equally as smart as the justices of the State high courts. Judges of the circuit courts are almost as smart as Justice Thomas and a bit smarter than the Judges of the Federal District Courts and the State trial courts. All of these people are surely smarter than I am. If this were not true then those honorable men and women would not hold the high positions they occupy. I must believe this if I am to accept the judgments of these people as wholly right and just, as of course they are.
It is strange, however, that taking the robe transform what may have been a mere political prostitute with a law degree and good connections and an eagerness to please his masters into a paragon of judicial wisdom on a par with Oliver Holmes, Jr., Louis Brandeis and Felix Frankfurter. Ain’t life wonderful?
For Pete’s sake,December, Justice Thomas does not have to be the sharpest pencil in the box. I don’t know of anyone who thinks that he is. All he has to do is be reasonably competent. He was nominated to the court as a safe vote for the reactionary movement and he certainly has done a competent job of doing that.
In fact, lawyer Stuart Buck says that Thomas is one of the sharper pencils in the box. The point of this debate is whether Buck is right, based on the quality of Thomas’s legal reasoning as demonstrated in his actual writings.
minty, Your comment above seems to imply that Thomas does not write many of his own opinions. My cite demonstrated that Thomas does have that reputation. Do you have any evidence to the contrary?
Gads: I’m not defending sleeping during oral arguments, although this is the first I’ve heard of Thomas doing that. Cite?
I have, however, read criticisms of Thomas that say he isn’t engaged in oral arguments – that he doesn’t ask a lot of questions and generally isn’t very interested in what is being said. That is an artifact of his belief that the briefs are all that really matters. And of course, whether you think such disengagement is a genuine negative depends on how much weight you think oral arguments ought to have. 
Here is what Thomas himself has to say about oral arguments, quoted here.
On clerks:
What this means, he leaves to his gentle readers.
Well, I’ve been to an oral argument, and seen him sleep. Some fellow law students of mine can corroborate that, both for the argument I attended (Chevron v. Echazabal) and for others.
If you want cite cites, though:
The Orange County Times, 12/2/00, quoting a college student watching the Bush v. Gore hearing:
The Legal Times, 4/2/01, On the effect of age on Supreme Court Justices:
(If anyone cares to hear it, by the way, I could make a pretty easy argument that Breyer’s shown himself to be five times the thinker Clarence Thomas is.)
I can try and find more, if you like. Will interviews with my current law school professors–several of whom have commented before on Thomas’s sleeping habits–suffice for you?