Posted by Eugene Volokh:
Senate Minority Leader Makes False Allegations
about Justice Thomas. [1]OpinionJournal's Best of the Web (James
Taranto) has the story on this. A month ago, Harry Reid, the Senate
Minority Leader said on NBC's Meet the Press,
I think that [Clarence Thomas] has been an embarrassment to the
Supreme Court. I think that his opinions are poorly written. I
don't--I just don't think that he's done a good job as a Supreme
Court justice.
Many people criticized Sen. Reid's claim (for instance, see [2]here),
but it was hard to evaluate it partly because the Senator gave no
examples. It turns out that on a [3]December 26 CNN program, Reid did
give an example:
HENRY: Let's take a look at what you said. When you were asked on
NBC's "Meet the Press" whether or not you could support Justice
Thomas to be chief justice you said quote, "I think that he has
been an embarrassment to the Supreme Court. I think that his
opinions are poorly written."
Could you name one of those opinions that you think is poorly
written?
REID: Oh sure, that's easy to do. You take the Hillside Diary case.
In that case you had a [dissent] written by Scalia and a [dissent]
written by Thomas. There -- it's like looking at an 8th grade
dissertation compared to somebody who just graduated from Harvard.
Scalia's is well reasoned. He doesn't want to turn [stare decisis]
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 Justice Scalia didn't write an opinion in the [4]Hillside
Dairy case, and the entirety of Justice Thomas's opinion was this:
Justice Thomas, concurring in part and dissenting in part.
I join Parts I and III of the Court's opinion and respectfully
dissent from Part II, which holds that �144 of the Federal
Agriculture Improvement and Reform Act of 1996, 7 U. S. C. �7254,
"does not clearly express an intent to insulate California's
pricing and pooling laws from a Commerce Clause challenge." Ante,
at 6-7. Although I agree that the Court of Appeals erred in its
statutory analysis, I nevertheless would affirm its judgment on
this claim because "[t]he negative Commerce Clause has no basis in
the text of the Constitution, makes little sense, and has proved
virtually unworkable in application," Camps Newfound/Owatonna, Inc.
v. Town of Harrison, 520 U. S. 564, 610 (1997) (Thomas, J.,
dissenting), and, consequently, cannot serve as a basis for
striking down a state statute.
I have no idea what's supposedly badly written about this paragraph.
What's more, as [5]James Taranto points out:
Reid's substantive criticism of Thomas--if it can be dignified with
such a description--turns out to be equally empty. According to
Reid, Scalia "doesn't want to turn stare decisis precedent on its
head," while Thomas does. Presumably this refers to Thomas's
rejection of the court's "negative Commerce Clause" jurisprudence.
In his Hillside Dairy opinion, as we've seen, Thomas does not
elaborate on this, instead pointing the reader to his lengthy
dissent in the earlier Newfound/Owatonna case--a dissent Scalia
joined. In other words, Thomas and Scalia both would overturn
Supreme Court precedent in this area; the only point of
disagreement in Hillside Dairy was whether to address the question
in this particular case.
I've called the Senator's press office to see if they have much of an
explanation for what seems like a pretty significant error.
References
1. http://www.opinionjournal.com/best/?id=110006106
2. http://volokh.com/archives/archive_2005_01_00.shtml#1104849022
3. http://transcripts.cnn.com/TRANSCRIPTS/0412/26/ips.01.html
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=01-950
5. http://www.opinionjournal.com/best/?id=110006106
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