He has said that the questioning by the Court is too chaotic, with justices talking over each other and pontificating more than questioning, and didn't feel he gained anything for the loss of dignity. The online format had more formal process of one person then another speaking, and he has apparently taken advantage of it.
He might've gotten more chatty during the Zoom era but Thomas went from no talking to some talking after Scalia died. They voted together most of the time, and Scalia sure did enough talking for the both of them.
Interpreting law is, generally speaking, a pretty objective task and SCOTUS isn't as politically partisan as the media often portrays it. Justices are consummate professionals, friends, and co-workers, not partisan hacks. Ginsburg and Scalia were famously extremely good friends.
> Interpreting law is, generally speaking, a pretty objective task
No, it's not. It is highly subjective; the various canons of legal construction all require subjective judgements, and selecting and prioritizing between them is subjective, and that's not even getting to the degree to which in practice those canons are invoked as post hoc rationalizations for decisions reflecting a jurists ideological and personal biases on the matter at issue.
I'm going to push back on this. Judging is somewhat subjective, sure. But the highly politicized nature of the U.S. Supreme Court makes the process more subjective than is necessary. For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago. In Obergefell, the U.S. Supreme Court determined that the implied right to marriage in the U.S. Constitution conferred a right to same-sex marriage. A year later, the European Court of Human Rights reached the exact opposite conclusion about the express right to marriage in Article 12 of the European Convention on Human Rights: https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... In another example, in the 1970s, when many high courts took up the question of abortion, the U.S. Supreme Court was the only one to determine there was a Constitutional right to abortion. Canada, France, Italy, etc., all found that it was a matter for the legislature. There is no high court in any country that intervenes on social questions as much as the U.S. Supreme Court.
In my opinion, the degree to which judging is subjective and ideological is overstated in order to support a level of judicial interventionism on the part of the U.S. Supreme Court that is quite unusual in developed countries. Go read German or Dutch high court opinions--they are a lot drier!
> But the highly politicized nature of the U.S. Supreme Court makes the process more subjective than is necessary. For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago.
Most countries have something closer to a civil law as opposed to common law basic system; and most of the ones that have a common law system also have parliamentary sovereignty as part of their Constitutional order, whether or not they have an actual written Constitution; this doesn't really change the basic subjectivity of legal decisionmaking, but the combination of a common law tradition which frames interpretation of the Constitution and the absence of parliamentary sovereignty gives the US Supreme Court more scope than most high courts have to start with, and more scope naturally means more room for subjectivity to manifest.
> For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago.
Germany's constitutional court also does so from time to time, unfortunately.
Decades ago they invented a right to "informational self-determination" that has no textual basis in the constitution.
It's a good right to have. I understand why they felt compelled to do so.
But every time the court decides something like this they have to demarcate the borders, where it applies and where not. In doing so so they draw red lines that the political process can hardly overcome, even if it might have yielded a better end result by giving the edges a little different form.
Last year our court invented a right to school education, again without textual basis.
The nice thing about German constitutional jurisprudence is that there’s an explicit recognition and functional balancing of competing rights and societal interests. This tends to cut both ways from the perspective of American politics. Religious interests and the right to life get robust consideration, but at the same time individual free speech and economic rights aren’t treated as a trump card against societal interests.
Your argument is wrong, but more saliently, is simply not in line with the data of thousands and thousands of cases. Judges on the "opposite" sides of the political spectrum disagree just ~30% of the time. This shows that law is interpreted -- by smart, well-educated, professional justices -- very similarly across the board.
> Your argument is wrong, but more saliently, is simply not in line with the data
It's perfectly in line with the data.
> Judges on the "opposite" sides of the political spectrum
Aren't that far apart because the American political spectrum is very narrow and the process for appointing and confirming judges has historically excluded judges from the extremes within that spectrum.
Much like people who mistake the pre-internet age of narrow media dominance as one of greater media objectivity, you are mistaking common bias with objectivity.
Sorry, I see now that my comment was unclear. I mean of the 5/4 splits, I'd be curious what proportion of cases split 5/4 in the expected manner (Democratic vs Republican appointees) versus other alignments (e.g., Sotomayor, Thomas, Gorsuch, and Ginsburg versus the rest).
What you'd actually expect with political parties that aren't particularly cohesive or consistent over time isn't partisan consistency but that judges would vote consistently with the position of their appointing President on issues politically salient at the time of their appointment and less predictably otherwise.
Sure, but it’s a policy choice—a more polite way of saying a political choice—to treat SCOTUS like a legal institution rather than a political one.
It is a legal institution, not a political one in the way Congress is explicitly a political institution that writes laws, but the seat holders are not apolitical machines who merely objectively look at what the law says because part of why they are there is that they have perspectives and they exercise this valuable thing called professional judgement that in the private sector people pay a lot of money for. Judicial philosophies which defer to the text as it is written (textualism) or interpret the text as it would have been understood in its original time and place (originalism) are treated with suspicion and politicized by those who believe the text should be interpreted through a modern reading and understanding of the text (living constitutionalism).
SCOTUS will never be perfectly apolitical, not while it is staffed by people as I expect it to in perpetuity, but it should not also succumb to becoming a political institution instead of a legal one.
Unfortunately that changed in 2016-2020 with the McConnell doctrine. The latest appointment's only distinguishing qualifications were partisanship and youth.
I don’t know how this idea possibly gained traction. If you asked me to come up with a short list in 2010 of who the next Supreme Court appointments of a Republican President would be, all three would have been in the list. Gorsuch and Kavanaugh were well known “feeder” judges in the Courts of Appeals, like Judge Garland is and Justice Ginsburg and Justice Souter were before their appointment. Barrett was a prominent law professor. The appointments were completely unsurprising.
It's just a talking point that gets repeated by folks that don't follow the legal profession in general or the federal courts more specifically. It's completely ridiculous to claim that Barrett is a "conservative sockpuppet" as some commenter below us makes. She's been a law professor most of her life. But everyone plays dirty: Garland should've been on SCOTUS (his work on the OKC bombing prosecution speaks for itself, and is not to mention patriotic); it's a shame that Congress blocked that vote, but politics is politics.
We've heard the same thing about Obama's appointments, Bush, and Clinton before him. The sky is always falling, but in reality the courts have been surprisingly stable and politically neutral -- a testament to the United States' governing principle of judicial independence.
We had a more balanced court in the past. Thomas and Scalia were previously on the court's fringe, but now with Amy Coney Barrett the fringe is pushed to crazytown. Pair that with the conservative majority, and you have a recipe for partisan hackery.
I think people have a poor understanding of just how far to the right the median American is on the issues the Supreme Court regularly handles. Remember, the majority of American support school prayer, think abortion should be illegal after the first trimester, and think that race shouldn't be a factor in college admissions or employment. Even in the latest Gallup polls, only 37% of Americans think the current Supreme Court is "too conservative": https://news.gallup.com/poll/4732/supreme-court.aspx
(1) That's a pretty selective survey. Do you deny that I could generate a list of issues the Supreme Court has heard, all on the left side of the American political spectrum, that the majority supports?
(2) Public opinion polls on issues, as opposed to candidates, are essentially meaningless.
Yes, sure, though primarily economic issues—Obamacare, campaign finance, etc.
Opinion polls on issues are important, because two-party politics distorts the signal of what the public really wants. That’s an especially bad problem in America, because race/immigration status splits both the social conservatives (many minorities are socially conservative but caucus with white liberals) and the economic liberals (many white people are economically liberal but caucus with white conservatives).
Abortion is a good example: in both parties the abortion debate is dominated by extremists. If you look at parties, it seems like the country is divided between two extreme positions. But in reality there are lots of pro choice republicans and pro life democrats. And there is actually a broad consensus that abortion should be permissible, but only in the first trimester. Another good example is affirmative action. The Democratic Party establishment loves it, but many democrat voters don’t. Thus, something like Prop 16 fails in California resoundingly even with the nearly universal support of Democratic politicians in an overwhelmingly democratic state.
Of course the exact same things can be said for republicans. The Republican establishment is in love with repealing universal healthcare, while many Republican voters like it.
When we think about the legitimacy of the Supreme Court vis-a-vis the will of the people, it’s important to keep public opinion polling in mind. In the next term, the Supreme Court may will outlaw race-based affirmative action in college admissions, and uphold a 15 week abortion ban. The media will treat both as far right extremism, but both decisions will in fact reflect the popular will.
It's not that the idea of an opinion poll isn't important, it's that they simply don't work. Even when the poll isn't sponsored by a partisan organization (in which case the poll will come out however the pollsters want it to), issues polling is plagued with biases; it's very difficult to design questions whose polled answers generate any insight.
Candidate polling is at least tied to a single concrete action that the respondent will actually take. It's not great, but you can learn stuff from it.
But that’s my point. The median American has heterodox beliefs.
The current 6-3 Court probably seems “far right” to the 8-10% of people with consistently liberal beliefs (https://hiddentribes.us). But the median voter agrees with the conservative Court on many issues, and disagrees on others. More people think the current court is too conservatives than who think it’s too liberal (it’s a 6-3 court after all) but the plurality (40%) think it’s “about right.”
I’d also point out that, while the median voter may support same sex marriage, they probably go to a church or mosque that does not approve of homosexuality. Amy Coney Barrett may seem like an “extremist” to someone from NYC or SF. But she probably doesn’t seem that way to an immigrant from Latin America, where charismatic Catholicism is prevalent and growing. Likewise, the median voter may support gun control, but they or a neighbor probably own a gun.
Women are struggling for the right to abortions in much of the latin world. Violent radical feminists are way more of a thing in Mexico.
Religious principles should not be used as a basis for government unless those principles could also be shown to be logical and beneficial in their own right. The government was set up with a separation between church and state for a reason.
Same sex marriage is perhaps the area where conservatives are most out of the mainstream. Its a red meat issue for republican politicians who have made anti-gay laws a focus of the most recent legislative dockets across conservative controlled state legislatures, but something like 70% of Americans support same sex marriages. My guess is it backfires on them.
Similarly, liberals underestimate gun ownership. Handgun ownership is at an all time high, across demographics. Black women are leading the surge in new hand gun ownership. And anyone who spends even a second investigating gun violence understands that its handguns that cause almost all of the damage of gun ownership. Liberals are tying themselves in knots trying to find ways to ban semi-automatic rifles while their constituents buy high capacity concealed carry pistols in droves. Its going to cost them as well.
This seems like a round about way of saying that our current voting policies over emphasize the fringes at the expense of the middle. But isn’t that widely accepted?
Kavanaugh has sterling credentials. He was in Law Review at Yale. He was both a SCOTUS Clerk and Bristow Fellow. He argued a case in the Supreme Court. He was a partner at a top law firm. These are the brass rings in the legal profession everyone is trying to grab.
He was a prominent judge in the DC Circuit Court of Appeals for 12 years, during which time he developed a reputation as a “feeder” judge who regularly placed his clerks onto the Supreme Court. That is the same role that Justice Ginsberg and Judge Garland had before they were appointed to the Court.
She’s an “ideological sock puppet” because she might vote to Roe, which would simply make American constitutional law the same as … France or Italy (which, contemporaneously with Casey determined that abortion was an issue for the legislature). Madness!
It’s not a “bias” to believe the Constitution doesn’t contain a right to privacy that protects abortion. That’s just being able to read. Pretty much nobody seriously believes in the logic underlying Roe. It’s the Lochner of left-wing jurisprudence. Even Ginsberg criticized the case, and offered a different justification for abortion rights. At this point it’s just stare decisis and ideology sustaining the precedent.
Accusations of “bias” and “preconceived opinion” are absolutely hilarious coming from the left. Republican judges regularly get wobbly and vote for the liberal position (Obergefell, Bostock, Woman’s Health. The liberal judges, however, always vote party line in these cases.)
Another comment has a citation for embarrassment over a previous regional dialect, but I'd also heard the "Not justices' place to question attorneys presenting their case" version.
Which has some merit. Show me someone who can listen as closely while they're also thinking of their next question, and I'll show you a liar.
The justices have already read a ton of briefs and deeply understand both sides of the case before oral arguments, it's not the first time they're hearing anything.
Isn't that just how the Supreme Court works though (and I think appeals courts in general)? I thought it was literally just judges/justices questioning lawyers, not witnesses or the defendant on the stand or something.
Maybe I'm just inferring that from how I've seen appeals courts portrayed on TV shows though; I guess I haven't really ever actually been in person to any appeal.
As I've heard it, Thomas' position was that it was the attorneys' responsibility to make the best, most complete case they can. And then the justices' responsibility to debate that case against the law and render a verdict.
Or, in other words, if an attorney makes a bad argument, or leaves an argument unsaid, that's their problem. It shouldn't be the justices' task to score points with their colleagues by guiding attorneys to different lines of thought.
But, obviously other justices feel differently. Hence the diversity of behavior! Which isn't necessarily a bad thing.
Right, but my point was that a standard (i.e. non-appeal) usually has lawyers questioning witnesses (or the defendant themself); they're explicitly not allowed to just pontificate without asking a question outside of the opening and closing statements. My understanding of an appeals trial was that there was no witness testimony, just lawyers talking to judges and vice-versa. If my understanding is correct, that means that without judges asking questions, an appeal would just consist of each lawyer essentially making a speech and then sitting down without any ability for discussion. This strikes me as a bit odd, which is why I'm wondering if I'm missing something. If I'm not, I would think Thomas' position is extraordinarily unorthodox, to the point that I wouldn't be surprised if no other appeals judge in the country shared it. I'm not sure how easy it would be to check that, but at the very least, has any other Supreme Court justice in the history of the United States every held that view?
If there is a risk of misunderstanding, it's good to confirm that the attorney is saying what the Justice thinks they are saying, before writing a scathing opinion excoriating the bad argument.
I strongly disagree. If you're a judge listening closely to a lawyer present their case, your head should be filling with questions for their arguments.
The Lawyers don't really present their case in oral arguments. The whole process is 1 hour, and each party involved is given 2 minutes to summarize their position.
This comment betrays that you don't really understand how the legal process works. There's often hundreds and hundreds of pages of briefs that go along with every case, and the oral argument is usually not even that relevant; it's mostly a formality in many cases. It's what gets the headlines, but the "meat" of the case is hardly the oral argument.
Agreed. I would waive oral arguments at practically every opportunity, except that I feel like the judges usually ignore all the written motions and decide based on who is wearing the nicest bow tie during oral arguments.
If there is one thing that the Founding Fathers got wrong, it is this: Supreme Court appointments should not be lifetime. Immune to politics, sure - Once they're in, they cannot be removed for term, maybe, but I believe that they should be fixed-term, not forever
What I would propose is thus: Each president should be allowed one appointment, 40 year fixed terms. Same confirmation rules, but rather than the vagaries of when justices step down or die, we have a floating pool of 7-10 justices at any time with new ones being added at a fixed rate.
Thanks for posting his reasoning, but it doesn't convince me -- there is only a very small window of real-time interaction on the cases and they should be making the most of it. If they're not going to ask questions they might as well just rule based on the briefs and not hold oral arguments at all.
He has said that the questioning by the Court is too chaotic, with justices talking over each other and pontificating more than questioning, and didn't feel he gained anything for the loss of dignity. The online format had more formal process of one person then another speaking, and he has apparently taken advantage of it.