In 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, 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 "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.
Related Posts (on one page):
- Jeffrey Toobin Looking for Corrections:
- More on Jeffrey Toobin's The Nine and Justice Thomas:
- My Take on -- And My Frustration With -- Jeffrey Toobin's "The Nine":
- More Criticism of Jeffrey Toobin's The Nine
- Jeffrey Toobin's The Nine and Justice Thomas:
- Jeffrey Toobin's The Nine: Inside the Secret World of the Supreme Court:
I'm sure it was unfair to single out Justice Thomas (because others do the same thing), but there is still something discordant about denying compensation to a permanently disabled worker while calling it "a fun little opinion."
Second, Thomas has had some "truly significant majority opinions," but I guess it all comes down to defining "truly significant." He wrote the plurality for Patane, and the majority in Good News Club. He also wrote Samson v. California, Kansas v. Marsh, Lawrence v. Florida, which, while not as sexy in the eyes of the media, end up making a fair impact on the law.
Perhaps. But consequences to many folks -- or to a few important ones -- makes the case, uh, "not inconsequential." And so, if, indeed, Mauro and Toobin are correct that "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" (I don't have any idea whether that's so, or how many such cases there are), then the case is of quite "consequential" significance, indeed. The practical effect of Supreme Court decisions, in other words (think of, e.g., Bush v. Gore) is much more important than how frequently lawyers and judges might cite the case in the future (although of course such precedential effect, too, can have enormous practical consequences).
Toobin's simple point here is that Thomas appeared to be oblivious to this important understanding of the Court's role. Thomas's comments about the so-called inconsequentiality of his opinion -- that it was a "fun" case and that it "didn't matter to anyone" -- were, at best, strikingly insensitive, in that they appeared to ignore the profound impact the decision might have on the physical well-being of railroad workers who suffer such horrific accidents. In other words, Thomas here seemed to treat the opinion-writing function as if it were simply a sport for lawyers -- his favorite case is one in which he made it much harder for workers to recover for such accidents, just because he was able to do some interesting research on trains?! -- rather than a solemn obligation that has a profound impact on the class of people affected. I don't know whether the statement is indicative of Thomas's attitude more generally, but it was very revealing -- which is why Toobin properly emphasizes it.
And then it follows that by using a quote that castigates Thomas for writing a unanimous decisions that was "consequential."
If that's not author bias, I don't know what is!
If 20% of this book were slashed, it could be great. The author obvoiusly spent a lot of time doing research and uncovered important facts. Why did he spoil it all by putting a mean-spirited gloss over the entire book? It would have been better to provide an objective view throughout the book, and then put the blowhard stuff all in a single chapter at the end. Instead, one is forced to examine both the wheat and the chaff.
Consider it this way. If President Bush, in talking about a particular small operation in the Iraq war where 5 soliders died (by the standards of war, inconsequential), said: "It's almost inconsequential. It was a fun little [operation]. I went back into the [geography] of [Iraq]" while ignoring the casulties; he would be justly pilloried.
Of course, both President Bush and Justice Thomas have very important things to do; and they cannot devote their attention to every worthwhile detail even if it affects some individuals in a very significant way. That is something to be regretted, not relished. To publicly forget the individual pain inflicted by one's decisions is not only bad politics, it is an abdication of a sacred responsibility of those in power.
I'm looking forward to reading the book to see if it is really so much worse than JCG's, which I found facile but which seemed to get a much more positive reception here and elsewhere.
Tvk: President Bush sends soldiers to their deaths, as have all other wartime Presidents. It's his decision, and, no, it's not fun.
But Justices are asked to resolve disputes between litigants. They don't crash railroad cars together to injure workers; they don't even set the railroad cars in motion. They don't "inflict[]" "individual pain" in the sense of physical injury: At most, in civil cases, they decide whether defendants must pay plaintiffs money or not. They come after the fact to be impartial arbiters of what the law is, and they (especially when they are on appellate courts) are deliberately placed far from the blood and personal anguish of the litigants.
It therefore does not seem wrong for judges to have fun doing legal research and writing an opinion, even when unfortunately the occasion for the opinion is someone's injury -- just as I can have fun writing about the Second Amendment even though at bottom the gun control debates (whichever side you're on) are about occasions of pain, crime, and death.
Isn't this true of all professionals? How often, for example, do surgeons say they did a "fun case" when the patients are receiving nargotic analgesia and may have permanent sequelae of the "fun case" like a colostomy? May trial lawyers derive pleasure from trying a case? Their clients hate being parties to litigation. Should prosecutors feel ambivalent when they win a conviction? The crime is water under the bridge; all they have done is to cause the alleged perp to be punished.
Let's not be indignant at professionals because they derive from socially productive work that may make others unhappy.
As for the case that this thread is discussing, it was unanimous, so even liberals like Ginsburg and principled conservatives like Stevens must have signed on to the opinion. No just evil Clarence, but the rest of the worthies were willing to consign railroad workers to being maimed without receiving the sort of remedy that Mr. Hiles sought.
Also, in a lot of the big cases, O'Conner/Kennedy get the assignment because they are the swing vote and the senior justice in the majority figures that if they assign the swing voter the case, they'll be less likely to switch to the other side. But does this mean that we should respect O'Conner/Kennedy more? Clearly not.
I think Marty has it exactly right. It's a shame that some judges forget that they are dealing with real people's lives.
Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (important for standing under the Equal Protection clause).
GOOD NEWS CLUB V. MILFORD CENTRAL SCHOOL, 533 U.S. 98 (2001) (important for free speech vs. Establishment Clause).
NATIONAL CABLE &TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES, 545 U.S. 967 (2005) (a very important telecommunications case).
MITCHELL V. HELMS, 530 U.S. 793 (2000) (important Establishment Clause case).
United States v. Bajakajian (first case striking down federal fine under Excessive Fines clause).
Ashcroft v. ACLU (important First Amendment case involving Child Online Protection Act).
How sad for Thomas. As the lone black man in a white man's club he is castigated for not being pink enough. Perhaps he should become a Duncan Kennedy convert and start rewriting the law with a big red marker.
And what major opinion did Thurgood Marshall write? And why was he never portrayed as Brennan's sidekick, as with Scalia and Thomas?
A few more nuggets from EV and other sites and I may spare myself reading the book.
Talk about burying the lede! Thomas is a horrible jerk for ruling . . . the same way all of the other justices ruled.
Thomas caused pain and suffering to millions of workers injured in rail car coupling accidents every year . . . by not rallying four other justices to change their minds.
Thomas did no such thing. Hiles wasn't denied compensation. He was denied liability as a matter of law under the Safety Appliance Act. And Thomas didn't do it; Congress did. And he didn't do this "while" calling it a fun little opinion; he called it that years later.
(1) No, there isn't.
(2) Thomas didn't say "consequential." He said almost [in]consequential.
No, actually, it's good that they do... because they're supposed to be dealing with the law. We don't want judges making decisions based on sympathy.
Decided five to four, FMC was a significant step in the Rehnquist Court's development of sovereign immunity jurisprudence.
I'd also say Markman is far and away Justice Souter's most important opinion.