Stephanopoulos: You got yourself into a little hot water last month when you said that Judge [sic] Thomas had been an embarrassment to the Supreme Court. Did you go too far there?
Reid: Well, let me say this. I voted against Judge Thomas when he was going to be confirmed as an associate justice of the Supreme Court. Why in the world would I ever vote for that man for chief justice? And probably that’s all I should have said.
Stephanopoulos: Because you did go on and say that, you know, you talked about his opinions and said they were poorly written, and you talked about one case, the Hillside Dairy case, where you said his read like an eighth-grade dissertation compared to Justice Scalia’s dissent, you said, which was like one from a Harvard graduate. We went back and looked at that, and Justice Thomas’s dissent was a simple two sentences, pretty clear to me, and Justice Scalia didn’t even have a dissent.
Reid: But here’s the problem in the Hillside case. But Justice Scalia did write in that case, and–
Stephanopoulos: But in the majority. Not a dissent.
Reid: Yeah, that’s right. But his reasoning was very logical. That’s my whole point, and I think that when we have an activist judge like Thomas, who wants to turn precedent on its head, it’s not good. And I can give you other cases. The Mitchell case on Fifth Amendment, where he and Scalia wrote differently. I mean, I know opinions. But, again, George, I acknowledge what I should have said: I voted against him the first time and I’m gonna vote against him the second time if he comes up.
Stephanopoulos: And leave it at that.
But Justice Scalia did not write in Hillside. That’s not a controversial proposition: Reid’s statement is simply false.
In Mitchell v. United States, Justices Scalia and Thomas did write separate opinions, but here’s Justice Thomas’s opinion:
Justice Scalia’s dissenting opinion persuasively demonstrates that this Court’s decision in Griffin v. California , 380 U. S. 609 (1965), lacks foundation in the Constitution’s text, history, or logic. The vacuousness of Griffin supplies “cause enough to resist its extension.” Ante , at 7. And, in my view, it also illustrates that Griffin and its progeny, including Carter v. Kentucky , 450 U. S. 288 (1981), should be reexamined.
As Justice Scalia notes, the “illogic of the Griffin line is plain” and its historical “pedigree is equally dubious.” Ante , at 2. Not only does Griffin fail to withstand a proper constitutional analysis, it rests on an unsound assumption. Griffin relied partly on the premise that comments about a defendant’s silence (and the inferences drawn therefrom) penalized the exercise of his Fifth Amendment privilege. See Griffin, supra, at 614; Carter, supra, at 301. As the dissenting Justices in Griffin rightly observed, such comments or inferences do not truly “penalize” a defendant. See 380 U. S., at 620-621 (Stewart, J., joined by White, J., dissenting) (“Exactly what the penalty imposed consists of is not clear”); id., at 621 (“[T]he Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive”). Prosecutorial comments on a defendant’s decision to remain silent at trial surely impose no greater “penalty” on a defendant than threats to indict him on more serious charges if he chooses not to enter into a plea bargain–a practice that this Court previously has validated. See, e.g., Bordenkircher v. Hayes , 434 U. S. 357, 365 (1978) (finding no due process violation where plea negotiations “presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution”). Moreover, this so-called “penalty” lacks any constitutional significance, since the explicit constitutional guarantee has been fully honored–a defendant is not “compelled … to be a witness against himself,” U. S. Const., Amdt. 5, merely because the jury has been told that it may draw an adverse inference from his failure to testify. See Griffin, supra, at 621 (Stewart, J., joined by White, J., dissenting) (“comment by counsel and the court does not compel testimony by creating such an awareness” of a defendant’s decision not to testify); Carter, supra, at 306 (Powell, J., concurring) (“But nothing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”).[footnote *] Therefore, at bottom, Griffin constitutionalizes a policy choice that a majority of the Court found desirable at the time. Carter compounded the error. This sort of undertaking is not an exercise in constitutional interpretation but an act of judicial willfulness that has no logical stopping point. See Carter, supra, at 310 (Rehnquist , J., dissenting) (“Such Thomistic reasoning is now carried from the constitutional provision itself, to the Griffin case, to the present case, and where it will stop no one can know”).
We have previously recognized that stare decisis is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini v. Felton , 521 U. S. 203, 235 (1997). Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case. For purposes of this case, which asks only whether the principle established in Griffin should be extended, I agree that the Fifth Amendment does not prohibit a sentencer from drawing an adverse inference from a defendant’s failure to testify and, therefore, join Justice Scalia’s dissent.
[footnote *] I also agree with Justice Scalia , ante , at 6-7, that Griffin improperly relied on a prior decision interpreting a federal statute to inform its resolution of a constitutional question–an error the Court later repeated in Carter . See Griffin, 380 U. S., at 613-614; Carter, 450 U. S., at 300-301, n. 16.
Nothing at all poorly written or illogical about this, it seems to me.
Actually, if Senator Reid had simply said that he disapproves of Justice Thomas because he’s too willing to overrule precedent, that would have been a defensible and factually well-founded position; Justice Thomas, more than any other Justice on the Court, has expressed his willingness to overrule quite a few decisions that he thinks are wrongly decided. James Taranto criticizes that position; perhaps a willingness to overrule unsound precedent is often good. But at least the position would be based on accurate assertions, rather than false ones.
Unfortunately, Senator Reid didn’t seem to think it was enough to say that he disagrees with Justice Thomas on the merits of certain cases, or that he disagrees with Justice Thomas on how often precedents should be overruled. No, instead he claims that Justice Thomas has been an “embarrassment to the Supreme Court,” “his opinions are poorly written,” his opinion (in Hillside) is at an “8th grade” level, and now that Thomas’s opinions aren’t “very logical” (unlike Scalia’s).
Instead of pointing to and justifying an honest disagreement about law or jurisprudence, Senator Reid makes unfounded assertions of incompetence — and backs them up with false statements (about Hillside) and mischaracterizations (that the “whole point” of his preferring Scalia to Thomas is that Scalia’s opinions are “very logical” and Thomas’s aren’t). There should be cause for embarrassment here, but not on the Supreme Court’s or Justice Thomas’s part.