Wednesday, August 27, 2003

Tushnet on Thomas

Via Lawrence Solum, here's a link to Mark Tushnet's new article Clarence Thomas's Black Nationalism. It's an interesting read. I found this passage particularly remarkable:
Probably because of the legacy of Justice Thomas’s bitter confirmation process, it is quite hard to locate serious academic commentary on Justice Thomas’s Supreme Court opinions that is even passingly dispassionate or written by someone without an obvious ax to grind.76 Justice Thomas’s disparagement of liberal elites, then, is only what they deserve for their disparagement of him.

76. [SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS 61 (1999)] may well be the only example of an extended analysis of Justice Thomas’s work that is reasonably dispassionate.
I could scarcely believe my eyes when I read the above. I re-read it several times in context, but still could detect no hint of sarcasm, no hint that Tushnet was here restating Thomas's own views. Tushnet really seems to be dismissing almost all previous scholarship on Justice Thomas -- the vast majority of which is quite negative -- as having an "ax to grind," as well as agreeing that Justice Thomas has every right to be dismissive of liberal elites.

This is quite intriguing, considering that Tushnet himself once wrote an article arguing that Justice Thomas should be impeached for lying at his confirmation hearings, and then suggested in the alternative that "citizens should not regard cases decided by the Supreme Court by a vote of five to four, with Thomas in the majority, as law at all." (See Mark V. Tushnet, Clarence Thomas: The Constitutional Problems, 63 Geo. Wash. L. Rev. 466, 477 (1995).)

UPDATE: I've now exchanged emails with Mark Tushnet, and he says I can quote him:
Well, maybe I've mellowed! * * * Another possibility is that there's a difference between scholarship about his confirmation hearings (the article cited) and scholarship about his Supreme Court opinions (to which the paper refers). I do think that that scholarship is almost entirely divided between stuff written by sycophants and stuff written by people who can't take anything he says seriously.
And this from a second email:
I do think that the distinction between writing about the confirmation hearings, etc., and writing about the opinions is important. When I wrote about the confirmation hearings there weren't that many (interesting) Thomas opinions to discuss (I think -- I'd have to go back and check to be sure), and now there are.

Incidentally, I'm going to begin the material on Thomas that I'm about to write with something like this: It's nearly impossible to find anyone who is dispassionate about Justice Thomas. The legacy of his bitter confirmation hearings remains strong. But, taking his work on the Supreme Court on its own terms, I think that what he has had to say about the Constitution is certainly more interesting than Justice Scalia's work and probably is more likely to make a permanent contribution to constitutional law -- if Thomas can suppress his occasional impulses to imitate Scalia's "take no prisoners" style and instead continues to write with the restraint that is more typical of Thomas opinions.
Tushnet adds the usual scholarly disclaimer that he may not hold to this particular wording in his forthcoming book.


Post a Comment

Subscribe to Post Comments [Atom]

<< Home