I can definitely see how real-world practicality would be an aid in Supreme Court decision-making. To take the most extreme example, Justice Thomas may be right in suggesting that much of the modern federal government doesn’t fit with the actual text of the Constitution. But the practical consequences of issuing such a ruling would be severe. Not to be too utilitarian, but perhaps Justices should always ask themselves, “Is this ruling going to be worth the trouble it’s going to cause?” And without real-world experience, they might not be as aware of what troubles can arise.

But you may be right that my judgement of Thomas as intellectually unqualified is really quite unfair–in some ways, reading through your material and elsewhere, it may be that Thomas is in fact a more consistent originalist than Scalia.

Anyway, thanks. You’ve sent me back to the books to rethink an early impression.

Just curious, if you get to this, Stuart (and Scott) as to what you think of the material on the Court in this month’s Atlantic Monthly which argues that pretty much the entire court is something of a disgrace in that none of them seem to be able to give clear guidance about the practical implementation of their decisions.

Having seen his work over the course of more than a decade, I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court.

And this:

Obviously, my readers know that I’m a fairly staunch critic of conservative judicial theories and judges, but I think Thomas has been the recipient of unduly harsh treatment. And that treatment has little, if anything, to do with his performance on the Supreme Court. If anything, Thomas is more consistent than Scalia or Rehnquist, his conservative colleagues on the court. And the fact is that Thomas, even where I disagree with him (and I usually do), has proven to be a much better legal thinker than some of his detractors would have you think. I happen to be one of those detractors, but I’ll criticize him in more specific and substantive ways when need be. To call him an embarrassment to the court is just ridiculous rhetoric and is not the sort of thing a Senate leader should be saying.

There’s only one person on the current Court who I think is straightforwardly a blemish on the institution, and that’s Thomas, who is clearly not qualified and who doesn’t even have a vague hint of a judicial temperment. [sic]

With all due respect, it is depressing that otherwise intelligent people say things that betray such ignorance of the Supreme Court’s work. Mark Tushnet, a well-known leftist law professor, thinks that Thomas has done interesting work as a Justice. Other knowledgable liberals were forced to come to Thomas’s defense when Senator Reid made his ignorant comments denigrating Thomas’s abilities (see here and here.)

Try reading the following representative Thomas opinions:

1. United States v. Bajakajian.

2. Beck v. Prupis.

3. Consolidated Rail v. Gottshall.

4. Egelhoff v. Egelhoff.

5. Gitlitz v. CIR.

Where in the above does Thomas fail as a jurist?

Finally, take note of the remarks of an ERISA lawyer:

My own evaluation of Justice Thomas’ work is based primarily on his opinions in ERISA and employee benefits cases, the area of law in which I practice. It is a good test of jurisprudential acumen, for no member of the Court has much ERISA expertise. Ability to make sense when venturing into unfamiliar legal terrain is a vital skill for Justices, who are the final arbiters of all statutory and common law but cannot possibly possess antecedent mastery of the whole.

By this criterion, Justice Thomas is one of the Court’s best jurists. His ERISA opinions are, with rare exceptions, clear, pithy and accurately reasoned. I particularly recommend for perusal his majority opinions in Hughes Aircraft Co. v. Jacobson (1999), which swept away years of confusion about the meaning of ERISA’s exclusive purpose rule, Egelhoff v. Egelhoff (2001), which strengthened and clarified ERISA’s prohibition against state interference with employee benefit plan administration, and Aetna Health Inc. v. Davila (2004), which reduced the murkiness of the Court’s conflicting rulings on the scope of ERISA preemption, his dissents in John Hancock Mutual Life Ins. Co. v. Harris Trust & Savings Bank (1993) and Varity Corporation v. Howe (1996), and his concurrence in Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon (2004), where he catches a fellow Justice in egregious circular reasoning and displays his talent for close reading of the statutory text. I don’t think that any fair observer, including one who disagreed with Justice Thomas’ conclusions, can deny that he argues well and writes forcefully. The contrast with many of his colleagues’ blurry, meandering forays into employee benefits law is striking.

And I’m surprised, frankly, that you say that I have not posted anything on abortion that deals with the moral complexities, or the importance of reproductive freedoms for the poor. There are several posts on specifically those issues in my “best of” list on the sidebar.

There are no guarantees in politics, but there are also social turning points whose institutionalization is so thorough and so distributed that they’re highly robust in the face of electoral change.

Privacy and self-ownership is politically interesting to me because formulated the right way it potentially interlocks a number of constituencies whose support for abortion rights alone might be weak or tenuous, and it taps into potentially wide-spread social consensus on some issues. If you ask people, for example, whether doctors should always have to obtain consent from you to perform a medical procedure on you, I think you’d get almost universal agreement. So then you ask, “But why should they?” and see what you can do from there.

Again, I guess my answer is–compared to what? Leaving aside that it hasn’t prevented statutory protections, why is a Supreme Court decision less stable than legislation? After all, the former has endured a Republican takeover of federal and state governments; the latter wouldn’t in many cases. A constitutional amendment, of course, would be superior–and for that matter it would be nice to have all progressive achievements embedded as constitutional amendments–but that’s not a viable option. And while the failure to achieve consensus over Roe is unfortunate, there are many issues for which is the case, and overturning Roe wouldn’t *help* consensus emerge–it would just make the policy oitcomes worse.

In politics, there are no guarantees. (It’s entirely possible that the VRA may not be renewed.) I agree when you say that Supreme Court decisions depend on political support. But the lesson to be drawn from this isn’t that it’s not big deal if Roe gets overturned; the lesson is that it’s really important to win elections.