Posted by Eugene Volokh:
More on Jeffrey Toobin's *The Nine* and Justice Thomas:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190741139
In [1]my post on this last week, I forgot to include one item that
strikes me as especially telling. It's from p. 102:
Indeed, it is difficult to point to a single truly significant
majority opinion Thomas had written. Many of his assignments were
unanimous opinions on minor subjects -- "dogs," in the Court's
parlance. When asked which of his opinions was his favorite, Thomas
would usually cite a 1996 case where the Court unanimously
overturned an award to a railroad worker who had sustained injuries
after trying to manipulate a "knuckle" between two cars. "It was a
little case that didn't matter to anyone," Thomas said in a speech.
"It's almost inconsequential. It was a fun little opinion. I went
back into the history of trains." (In fact, as the journalist Tony
Mauro first reported, the case was not inconsequential. Thomas's
opinion made it much harder for railroad workers to recover for the
horrific accidents that can take place when they climb between two
railcars in the process of coupling. Years after the decision, the
plaintiff in the case, William Hiles, was still bedridden most of
the time.)
This is precisely the sort of thing you wouldn't expect in a book that
takes the Supreme Court seriously. The first sentence is probably
right, and a sensible evaluation of Justice Thomas's influence as a
majority opinion writer (as opposed to as one of nine votes, or as a
dissenter). It's a judgment call, of course, but my sense is that
indeed Justice Thomas had not been assigned to write the majority
opinion in the most high-profile, controversial, or otherwise
important cases.
Look, though, at the parenthetical. The case, we're told, is not
inconsequential because it had an effect on some litigants, and
because the particular litigant in this case couldn't recover for his
serious injury. But Justice Thomas was of course talking about how
inconsequential the case was by the standards of the Court. He and
other Court-watchers know that the Court agrees to about 1% of all the
cases it's asked to take. It doesn't take cases, especially cases on
statutory interpretation, just to resolve an error below, or even set
forth the right rule; it takes them to set the lower courts straight
on an important topic that is likely to arise repeatedly.
And by the standards of the Court's cases, [2]this particular case,
Nortfolk & Western Ry. Co. v. Hiles, is indeed of little consequence.
Consider one measure of consequence -- the degree to which the case is
cited by other cases. (This isn't a perfect measure, but it's a good
first cut.) Hiles is in volume 516 of U.S. Reports, which contains 33
cases decided by opinion. Those 33 cases put together were cited in
1769 cases in 2006, for an average of about 50 yearly cites per case.
Hiles was cited in 1 case in that year, a little below the average of
2 cases per year since it was handed down.
I can understand how an average editorialist who wants to complain
about Justice Thomas could make this sort of argument. No case in
which people were maimed and as a result of which others would be
denied recovery, the argument would go, should be treated as
inconsequential or insignificant. Justices should treat each case as
important. Oh, and let's add a whiff of [3]"the youngest, cruelest
justice" -- how could Justice Thomas be so insensitive to the plight
of poor William Hiles?
But someone who is writing a serious book about the Supreme Court
can't, I think, take this sort of view. The Justices are asked to hear
several thousand cases each year. Many of them center around one or
another tragedy. Consequence to one or a few people, while enough to
bring a tear to the eye of some journalists, can't be the measure of a
case's significance to a serious commentator on the Supreme Court.
And of course Jeffrey Toobin takes precisely this view in the opening
sentence: None of Justice Thomas's majority opinions were "truly
significant." Of course all of them affected the litigants, and
affected the law, but significance is a comparative matter. Yet let
Justice Thomas refer to the "[not] truly significant" cases as "almost
inconsequential," and he gets condemned for apparently neglecting the
importance of horrific accidents and an injured plaintiff (a plaintiff
whose legal claim, incidentally, was rejected by a unanimous Court,
not just Justice Thomas).
All this, I think, reinforces my diagnosis: What is otherwise a
serious book about a serious subject doesn't seem able to maintain its
seriousness when it comes to this particular Justice.
References
1. http://volokh.com/posts/1190395897.shtml
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10214
3.
http://www.legalaffairs.org/issues/January-February-2005/review_presser_janfeb05.msp
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