Posted by Jonathan Adler:
Is Justice Thomas "Now Our Greatest Justice"?
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246370258
Tom Goldstein has a thoughtful and interesting post on SCOTUSBlog
summarizing the just-sortof-concluded Supreme Court term and looking
forward to the next. I think Goldstein overstates the conservative
trajectory of the Court; the judiciary's inertial momentum to the left
remains strong, and the Roberts Court, as a whole, is [1]less
conservative than many claim. That disagreement aside, I think
Golstein makes some very good points, and his analysis is informative.
I was particularly struck by his discussion of Scalia and Thomas,
which I excerpt below:
I think that the most interesting Justices, by far, were Justices
Scalia and Thomas. Both remain the most principled members of the
Court. They joined the defendant-favoring majorities in Gant in
Melendez-Diaz, as they consistently have done in the recent lines
of jury-right and confrontation cases. Justice Scalia joined the
left to provide a majority in Cuomo and Spears. Justice Thomas did
the same in the maritime punitive damages case, Atlantic Sounding.
There is no counter-example in which a member of the left joined
the Court�s four most conservative Justices to provide a majority.
Justice Thomas, in particular, remained willing to front new
theories on critical questions, often writing only for himself, as
in NAMUDNO. No other member of the Court is so independent in his
thinking. The irony of course is that there remains a public
perception, rooted in ignorance, that he is the handmaiden of other
conservative Justices, particularly Justice Scalia. I disagree
profoundly with Justice Thomas�s views on many questions, but if
you believe that Supreme Court decisionmaking should be a contest
of ideas rather than power, so that the measure of a Justice�s
greatness is his contribution of new and thoughtful perspectives
that enlarge the debate, then Justice Thomas is now our greatest
Justice.
References
1. http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1227981714
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