Curious commentaries

The yakkity-yak over Clarence Thomas and all other matters relating to the possibly-soon-to-be-vacant Chief Justice’s seat continues apace.  Two of today’s commentaries caught my eye.

First, John Yoo (Berkeley law prof, former Thomas law clerk, and "principal author" of the infamous August 1, 2002 "torture memo") writes in the LA Times that Thomas "can do more good for the country as an outspoken associate justice than he could as chief justice."  Yoo argues that Thomas’s influence would actually be diminished by sitting in the Chief’s chair, and that he has "more freedom to speak his mind" as an associate Justice.  As evidence for this counter-intuitive position, Yoo says of current Chief Justice William Rehnquist:

As a younger associate justice, he advanced revolutionary theories calling for a reversal of the court’s approach to race, states’ rights, abortion, religion and free speech. After becoming chief justice, however, he left behind his lone-dissenter role.

Well, I’m not sure this theory really holds water.  No question that Rehnquist doesn’t dissent alone like he used to.  But let’s remember that when Rehnquist joined the Court in 1972, he was by far its most conservative member, and that he was the only one arguing the then-revolutionary position that (for example) the states’ "sovereign immunity" extends well beyond the literal language of the 11th Amendment and acts as a sweeping limitation on congressional authority vis-a-vis the states.  Now, of course, that very position has been accepted by five Justices of the current Court, and Rehnquist writes majority opinions on that topic where he used to dissent alone.  To me at least, Rehnquist’s evolution away from lone dissenter status seems more clearly to reflect the Court’s movement to the right than any shift in Rehnquist’s ideology.  And if anything, Rehnquist’s becoming Chief in 1986 seems more likely to have accelerated the process of his views gaining majority status, not slowed it down.  In short, I’m not convinced.

In any event, it’s interesting to see John Yoo — an ardent Thomas defender — advocating against Thomas’s elevation to Chief (albeit on different grounds than others who’d prefer to see him stay where he is).  One has to wonder whether little birdies from the 202 area code have been whispering in Yoo’s ear (Yoo is presumably still in touch with his former boss) that Thomas would prefer not to have to appear before the Senate Judiciary Committee again — once may have been enough, thank you very much.

The second commentary, by Armstrong Williams (a self-described "pugnacious, provocative and principled voice for conservative and Christian values"), was notable for different reasons.  First, Williams says that "two of the U.S. Supreme Court’s most liberal justices — Sandra Day O’Connor and John Paul Stevens — are on the verge of retirement."  Aside from the total absence of any indication that either of these Justices plans to retire soon, one can only describe O’Connor as one of the Court’s "most liberal Justices" if one uses that phrase to mean "not one of the Court’s three most conservative Justices," at which point the phrase has lost all meaning.  Without question, Justices Stevens, Souter, Ginsburg, and Breyer are much more reliable "liberal" votes than O’Connor, and she and Kennedy trade back and forth for the "fifth most liberal" (or, of course, "fifth most conservative") spot. 

Second, Williams criticizes the "grand moral theorizing of the Warren Court," adding that "Roe v. Wade is the prototypical case."  Only problem there is that Roe is a post-Warren Court case.  It was decided under conservative Chief Justice Warren Burger — and Burger joined the majority opinion.  Whoops. 

Third, and perhaps most strangely, having castigated the Warren Court’s "moral theorizing," he then castigates the Rehnquist Court for its "fear of moral theorizing" and its supposedly resulting "failure to offer a clear, intelligible and rational basis for many of their decisions."  He goes on to argue (if one can call it that) that only by "acknowledging that morality and law are inseparable" can law serve its "fundamental purpose of giving citizens and lower courts fair warning of what constitutes a crime."  Confused?  I sure am.  Maybe Williams’ argument is that courts should engage in moral theorizing, but only from the "conservative and Christian" perspective that he supposedly represents.  But maybe not — I really can’t tell.  Commentary that’s this muddied (as well as factually incorrect) just doesn’t advance the debate.

Oh, one more thing, Armstrong: when you’re using "its" as a possessive pronoun, there’s no apostrophe.  "It’s" only means "it is."  Just a personal pet peeve.

We’re sure there’s more to come on this topic.  Stay tuned!

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