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June 29, 2009

"This is really a fascinating term for Justices Scalia and Thomas"

The title of this post is a quote from Tom Goldstein's live-blogging at SCOTUSblog in reaction to the handing down of the final opinions of the 2009 Supreme Court Term.  I largely agree with this sentiment, though I have found everything these two do interesting since the Apprendi jurisprudence got going.  I would be interested in how regular readers of this blog respond to this comment.

UPDATE:  Here is how Tom unpacked his quote in these end-of-term reflections:

I think that the most interesting Justices, by far, were Justices Scalia and Thomas.  Both remain the most principled members of the Court.  They joined the defendant-favoring majorities in Gant in Melendez-Diaz, as they consistently have done in the recent lines of jury-right and confrontation cases. Justice Scalia joined the left to provide a majority in Cuomo and Spears.  Justice Thomas did the same in the maritime punitive damages case, Atlantic Sounding.  There is no counter-example in which a member of the left joined the Court’s four most conservative Justices to provide a majority.

Justice Thomas, in particular, remained willing to front new theories on critical questions, often writing only for himself, as in NAMUDNO.  No other member of the Court is so independent in his thinking.  The irony of course is that there remains a public perception, rooted in ignorance, that he is the handmaiden of other conservative Justices, particularly Justice Scalia.  I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.

June 29, 2009 at 10:31 AM | Permalink


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It is drearily predictable to those who know the self-evident, Rent Seeking trumps all ideology.

Posted by: Supremacy Claus | Jun 30, 2009 4:35:39 AM

SC is complaining someone else is "drearily predictable"? How drearily predictable.

Must be the rent seeking lawyer's fault. Why won't they just all work for free?

Posted by: Gritsforbreakfast | Jun 30, 2009 9:46:08 AM

I disagree with Tom profoundly on the definition of a great Justice. Novelty in ideas is overrated. Expansion of the debate for the sake of expanding the debate until debate swallows everything is actually the definition on an illness. That doesn't mean that anything novel is wrong or even that it bears the burden of persuasion. It just means the the flip-side, that new is great because it's new, is also the wrong standard.

Posted by: Daniel | Jun 30, 2009 11:10:23 AM

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