The U.S. Supreme Court (Jer123 / Shutterstock.com).Why Justice Thomas Is Wrong about Precedent
The justice's dismissal of common law precedent in the context of written law is a distraction, based on a misreading of history.
Former Georgia Gov. Sonny Perdue, left, chats with Justice Clarence Thomas following Purdue’s swearing-in as the 31st U.S. Secretary of Agriculture at the Supreme Court, April 25, 2017. (USDA Photo / Alamy Stock Photo).Is Justice Kavanaugh Grievously Wrong on Stare Decisis?
Image: Billion Photos/Shutterstock.comHow Janus Weakens Stare Decisis
Panorama of the United States Supreme Court at dusk in Washington DC, USA (Joe Ravi/Shutterstock.com).Crouching Congress, Hidden Judges
One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion. If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it. Yet the judicial Minotaur…
Do You Believe in the Judicial Supremacy of Dead Justices?
Randy Barnett recently had a great line on Twitter (link no longer available) accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?
Thomas’s Full Throated Originalism: Ralph Rossum Responds
U.S. Supreme Court Justice Clarence ThomasI am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s other originalist, is also willing to reject Supreme Court precedents that depart from the constitutional text or the traditional understanding of that text, but, as he once confessed to being a “fainthearted originalist,” he has also confessed to being fainthearted when it comes to overruling…
More Responses
Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…
Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence…
Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…
The Jurisprudence of Constitutional Restoration Is Originalism, but Not All Conceptions of Originalism
Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence Thomas. Before turning to the core of my Essay, let me first note Rossum’s unique contributions. Rossum brings up to date the literature on Justice Thomas, and his compilation and synthesis of Justice Thomas’ hundreds of opinions enables the reader to systematically understand and evaluate Justice…
More Responses
Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered,…
Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…
I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…
Sowing the Seeds of an Originalist Future
Not too long ago, I found myself discussing the U.S. Supreme Court with an acquaintance who does not particularly follow politics. During the conversation, I mentioned the name of Justice Clarence Thomas, which provoked the question, “He’s the one who doesn’t do anything, right?” I suppose there are worse ways that Justice Thomas could be remembered, but the meme that he is a passive presence on the bench is now widespread. This perception is, no doubt, a generalization from the oft-noted fact that Thomas rarely asks questions during oral arguments. Like Calvin Coolidge, whose historical reputation as “Silent Cal” has been…
More Responses
Dr. Ralph Rossum’s most recent book, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, performs the valuable service of cataloguing and synthesizing the jurisprudential work of one of America’s great living jurists. Rossum’s book joins other sympathetic—though not hagiographic—accounts of Justice Thomas’ work, most importantly Professor Scott Douglas Gerber’s First Principles: The Jurisprudence of Clarence…
Ralph Rossum has followed his indispensible volume on Justice Scalia with an equally indispensible analysis of Justice Clarence Thomas’s life and work. The two seem destined to be paired forever. Because they share so much in common, each is the other’s best foil. Professor Rossum draws such contrasts expertly, as have Randy Barnett and Lee Strang,…
I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Antonin Scalia, the Court’s…
Friday Roundup, November 15th
Did the American Constitution help Americans create the condition of statelessness for others? That's the question taken up by David Hendrickson in our feature review essay this week. Hendrickson's evaluation of Eliga Gould's Among the Powers of the Earth notes that the book is a welcome addition to what the author styles as the internationalist or unionist interpretation of the revolution, of which my own scholarly work forms a part. Gould is at pains to say that nothing in his interpretation is inconsistent with the view which sees the Constitution as a peace pact, but his main emphasis is how it…
