Justice Clarence Thomas’s critics have long slandered him as “lazy,” simply because he only rarely asks questions during oral arguments. But such criticism is entirely misguided, especially when one considers that Justice Thomas is the Court’s most prolific opinion-writer, year in and year out (as I explained earlier this year).
Given Thomas’s penchant for writing separately to spell out his views, I was particularly interested to hear him describe his own approach to writing separately instead of compromising for the sake of alliance-building, in his new Conversation with Bill Kristol:
How refreshingly straightforward. As scholars have observed, a judge or justice may write separate “concurring” or “dissenting” opinions for a variety of purposes. But Justice Thomas’s approach is much less strategic or tactical. He writes them to show his disagreement with the Court’s majority opinion. And if he doesn’t agree with his fellow dissenters, he doesn’t join their dissent; he writes his own instead.
Hearing his explanation, I could not help but think of Justice Ruth Bader Ginsburg’s explanation of her own approach to writing or joining her colleague’s dissents.
Last year, she told NPR’s Nina Totenberg that she believed it was important for the dissenting justices to join together on a single dissenting opinion—rather than writing separate dissents—in order to maximize their political impact. “If you want to make sure you’re read, you do it together, and you do it short,” she told Totenberg. “Otherwise people will neither read you nor understand what you are saying.”
Totenberg further reported, “Ginsburg seemed to acknowledge that the unity policy that the more liberal members of the court have tried to follow since Bush v. Gore worked this term with stunning success, especially as contrasted with work of the court’s more conservative justices. The four most conservative members of the court wrote a total of 78 dissenting and concurring opinions, as contrasted with the four liberals, who wrote a total of 27.”
Justice Ginsburg and Totenberg went so far as to suggest that Justice Thomas and the other conservatives might start compromising more on joint opinions, in order to achieve similar political success:
To be sure, Justice Ginsburg’s approach has undeniable utility, especially in terms of maximizing political impact. (Justice Ginsburg has written at length on the political impacts of her dissents, such as her famous four-justice dissent in Ledbetter v. Goodyear Tire, regarding lawsuits over pay discrimination.)
But it would seem a mistake for her to suggest that Justice Thomas’s own approach is not “disciplined.” Justice Thomas is pursuing a very different objective, for which writing alone is hardly counterproductive, let alone undisciplined. Quite the contrary.
In a radio interview on Friday, Bloomberg’s Greg Stohr asked me about Justice Thomas’s originalist voice on the Court. Referring to his many dissents, I told Stohr that Justice Thomas often serves as the “conscience of the Court, in terms of criticizing its opinions when they depart from [the Constitution’s] original meaning.”
The Court too often fails to heed that conscience, of course. But for that very reason, Justice Thomas’s stoic persistence deserves our deep gratitude.
Adam J. White is a research fellow at the Hoover Institution.
