Patterico's Pontifications


Jan Crawford Greenburg on Justice Thomas and Precedent

Jan Crawford Greenburg has a post on Justice Thomas and precedent. With me, she’s preaching to the choir, and telling me little I don’t know. But I’m a lawyer who follows this stuff closely. I think more Americans need to hear about his theory of judging, so here’s a taste:

[Thomas] suggests he sees real limits on the kind of cases he would seek to overturn–even if he believed they were wrongly decided under the Constitution.

But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.

“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.

“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”

That willingness to “think it through” separates Thomas from Scalia in a number of cases.

One of the examples is the medicinal marijuana case. For a review of how Justice Thomas differed from Justice Scalia in that case, I commend to you my post on the case, which opened by saying:

I have read Gonzales v. Raich. And I’m not happy, either with the decision, or with my (usual) hero Antonin Scalia, who wrote an unconvincing concurrence. But I’m more and more impressed with Clarence Thomas.

I still feel that way.

20 Responses to “Jan Crawford Greenburg on Justice Thomas and Precedent”

  1. I totally agree. I often find Scalia unconvincing, but Thomas is literal short of a fair-minded common-sense legal hero. I’ve laid it out a bit thick, but he’s the top mind on the court. In a perfect world, he would have been chief justice.

    Christoph (92b8f7)

  2. *little short

    Christoph (92b8f7)

  3. I agreed with you and Thomas on this one, for once. Nice to see a man stick to his principles.

    Russell (a32796)

  4. I’ll take a Scalia opinion over a Kennedy one any day. More than one occasion, I’ve had to read a Scalia dissent to have a clue what a Kennedy majority was trying to say.

    SPQR (6c18fd)

  5. Justice Thomas is a thoughtful, principled man and, in my opinion, the best member of the Court.

    Paul S. (91660f)

  6. Hey, this is arguably off topic, but speaking of medical marijuana, what do you think about Mitt Romney running away and ignoring a wheelchair bound patient’s question on the subject?

    My opinion of him (high) is being lowered. Question: Is this simply his natural Mormon bias against drugs getting the better of his political judgment or was this simply bad political judgment that he thought would help him somehow?

    Finally, his huge banner “ASK MITT ANYTHING” just gives a weapon to the Democrats were he to win the nomination or a VP slot for a wickedly effective ad, doesn’t it?

    I think you can stick a fork in Mitt and yesterday I would have said he’d make a good candidate.

    Christoph (92b8f7)

  7. Oh, sorry, link to Mitt’s huge gaffe.

    Christoph (92b8f7)

  8. Not going to stop me from voting for Romney. I run away from whiny losers who accost me in the grocery store parking lot all the time.

    nk (6e4f93)

  9. That man in the chair was not a whiny loser. He was someone struggling against a serious disease who wanted access to a prescribed drug for appetite without being put in jail. To do it under an “Ask Mitt Anything” sign was dumb.

    I expect this to damage Mitt’s stalling campaign as well it should.

    Christoph (92b8f7)

  10. Back on topic, it took me a while to accept that Bork was totally FOS in his derisiveness of stare decisis. Without stare decisis or, if you prefer, respect for precedent, we have have abandonded the common law system and have created a situation where the same question of law will be relitigated thousands of times because the court’s decision will only apply to the parties before it.

    nk (6e4f93)

  11. Christoph,

    I will not diagnose the man and I apologize for calling him a whiny loser. But … for my sins … I hang around doctors a lot. I asked an oncologist about medical marijuana when Raich was pending and he laughed in my face. He knows a much more effective anti-nausea prescription drug. (Don’t quote me but I believe he said Zofran or something close.)

    nk (6e4f93)

  12. NK #10,

    I think you just described French civil law.

    DRJ (d0ada6)

  13. Different people tolerate different drugs, nk. One, there is no reason to believe there is only one active ingredient in a highly complex compound like marijuana. Two, the method of administration is different… some people vomit when administered orally; most don’t, but some do.

    A doctor should decide this, not the courts. At any rate, Mitt should have answered the friggin’ question so as not to look like a horse’s ass with that sign in the background.

    Christoph (92b8f7)

  14. DRJ #12,

    And most other European countries’ and much of our own State of Louisiana’s law, too. But think back to your recent posts about whether the granting of a stay in one death penalty case created a stay in other death penalty cases. With stare decisis, [maybe] yes. Without stare decisis, no.

    nk (6e4f93)

  15. Finally, his huge banner “ASK MITT ANYTHING” just gives a weapon to the Democrats were he to win the nomination or a VP slot for a wickedly effective ad, doesn’t it?

    Dems are too savvy to make an issue of a GOP candidate snubbing an appeal for legal pot. They don’t want to go there when they’re ramping up the socialized meds campaign.

    That man in the chair was not a whiny loser. He was someone struggling against a serious disease who wanted access to a prescribed drug for appetite without being put in jail.

    I don’t have any knowledge of the incident beyond what you’ve just typed, but as a San Francisco resident I can tell you that medicinal pot is nothing but back door legalization of recreational pot. The proponents of “medicinal” pot don’t want to treat it like medicine, they want a doctor’s prescription to be a “Get Out of Jail Free” card.

    That guy in the wheelchair might have been able to smoke the stuff for his legitimate illness if some of the most prominent activists didn’t want to make it just as easy for a relatively healthy to get a scrip for insomnia, back pain, or “anxiety.”

    L.N. Smithee (5b909c)

  16. Well, L.N., that’s pure horseshit. It’s a drug. It has some medical uses and a lot of problems.

    I’ve used — and seriously dislike — the drug. I think the health problems it causes are seriously understated. But when to use it for medical purposes should be up to doctors.

    Heck, when to use it at parties should be up to individuals.

    Christoph (92b8f7)

  17. L.N. Smithee, having reread the last paragraph of your comment, I apologize. You were making a good point.

    Christoph (92b8f7)

  18. May a poor but honest non-lawyer take issue with comment #10? Tearing down the whole common law system, beginning with stare decisis is exactly what the nation needs, and needs desperately. For the courts have been systematically and, I maintain, deliberately, manhandling the law to read whatever a sitting judge wants it to say. Can anyone honestly say that Roe was correctly reasoned and decided? Anyone at all? And yet we are somehow expected to give that putrid decision the weight of law? NONSENSE! Blackmun et al should have been impeached and removed by nightfall of the same day for that over-arching atrocity and sent to live out their remaining days as servants at a leper colony. Bowing to stare decisis is just a way of saying that the nation that started so bravely by getting out from under the rule of hereditary barons and princes has willingly submitted to the equally unaccountable rule of judges and clerks. Find support for that in the Constitution. It’s not there. What it has become is a naked power grab, incremental to be sure, but one all the same. No sir. Put this stare nonsense to the curb along with the divine right of kings, the theory of phlogiston, and any number of once-popular sillinesses.

    tnmartin (ebf171)

  19. the only republican candidate i have any interest in is ron paul, and since he isn’t going to be nominated, i hope the republicans nominate romney because this will lead to a democratic administration. america isn’t going to elect a mormon president, any more than it would elect a scientologist, branch davidian or moonie. bizarre tenets, censorious moralism, aggressive proselytizing and odd personal habits qualify mormonism as a cult. a mormon president would bring in a number of mormon aides and officials, and suddenly salt lake city will be established as a rival headquarters to washington d.c., and taxes on alcohol and coffee too will surely go up. keep your eyes on the ball dudes, it isn’t you or me who decides, it’s schoolteachers and soccer moms, the cooks and waitstaff at the denny’s, the people you see in the aisles when you visit the walmart; they decide, because they are more numerous in this democracy, and they have enough craziness to deal with in their lives without electing mitt romney president.

    assistant devil's advocate (630930)

  20. ADA, its a shame that your comment appears to endorse religious bigotry.

    SPQR (6c18fd)

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