Adam Liptak

Every Little Thing the Reflex Does (Clarence Mark Remix)

Supreme Court Justice Clarence Thomas laughs while talking with other guests at The Federalist Society's 2011 Annual Dinner. (Cliff Owen/Associated Press)

This seems significant:

Justice Clarence Thomas has not asked a question from the Supreme Court bench since 2006. His majority opinions tend to be brisk, efficient and dutiful.

Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.

The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.

Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording is particularly common.

Justice Thomas’s seven majority opinions in the last term were on average just 12 pages long and contained little but a summary of the facts and quotations from or characterizations of the relevant statutes and precedents. Since opinions are signed by justices but often drafted by law clerks, it may be that any borrowed language was the work of Justice Thomas’s clerks.

(Liptak)

It is true that such notions and the details from which they arise seem to many people obscure, or even petty. But to even casual observers of the Supreme Court, Justice Thomas is something of an enigma. And every time we get a glimpse into how he undertakes his role and duties as a Supreme Court Justice, we only end up with more questions, each stranger than the last.

But that’s the thing; compared to other aspects of his tenure, this isn’t exactly scandalous. In questions of scandal, it is just another piece of data that could be construed as relevant. Without worrying about such questions of scandal, this really is fascinating.

No, really:

In June, he slipped in a playful aside. What he had just read, a description of synthetic drugs, he said to laughter, was “a sentence which I completely do not understand.”

Still, there is actually a lot more to Adam Liptak’s report for the New York Times; and, yes, it really is fascinating.

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Image note: Supreme Court Justice Clarence Thomas laughs while talking with other guests at The Federalist Society’s 2011 Annual Dinner. (Cliff Owen/Associated Press)

Liptak, Adam. “A Supreme Court Justice of Few Words, Many of Them Other People’s”. The New York Times. 27 August 2015.

Justice

People celebrate inside the Stonewall Inn, an iconic gay bar recently granted historic landmark status, after the U.S. Supreme Court ruled same-sex couples have the right to marry in all 50 states. (Yana Paskova/Getty Images)

Today.

This is our honor.

• There is, of course, the decision itself: Obergefell v. Hodges (14-556)

• Or perhaps a headline: “Gay Marriage Supporters Win Supreme Court Victory”

• The author: “Kennedy: The Gay Marriage Justice”

• Another headline, this one somewhat overstated: “Texas Pastor Says He Will Set Himself On Fire In Protest Over Gay Marriage”

• Dissents or temper tantrums? “‘Ask the nearest hippie’: The conservative SCOTUS justices’ opinions on marriage equality are hilariously bitter”

• And why not ask a hippie? “We Asked the Nearest Hippie About Scalia: It Was David Crosby”

• Unfit for duty: “To avoid marrying gay couples, some Alabama counties have stopped marrying everyone”

• GOP presidential timber, part one: “Constitutional Remedies to a Lawless Supreme Court”

• Fifty-four years, cookie dough, and Stonewall celebrations: “From Ice Cream To Ian McKellen: Reactions To Same-Sex Marriage Ruling”

• GOP presidential timber, part two: “Jindal: ‘Let’s just get rid of the court'”

• GOP presidential timber, part three: “Scott Walker calls for Constitutional amendment to let states define marriage”

• What a real President of the United States sounds like: “Remarks by the President on the Supreme Court Decision on Marriage Equality”

I would at this time raise a glass to homophobic traditionalists from Sea to Shining Sea; without your dedicated, horrifying zeal, we might never have come this far. Indeed, your own cruelty and hatred shepherded this day.

Drink up, dreamers of hatred and supremacism; you’re running dry.

Then again, we also know you’re nowhere near finished, at least in your own minds. We’re here. We will hold the line. We know you’re targeting children, now, and we will hold the line.

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Image note: People celebrate inside the Stonewall Inn, an iconic gay bar recently granted historic landmark status, after the U.S. Supreme Court ruled same-sex couples have the right to marry in all 50 states. (Yana Paskova/Getty Images)

The Growing Scandal of King v. Burwell

FILE - In this Feb. 12, 2008, file photo, Chief Justice John G. Roberts, Jr., is seen in Providence, R.I.  Turned away at the Supreme Court, congressional Republicans sketch a filibuster-proof strategy to repeal the nation's health care law in 2013.  But it hinges on two uncertainties ― Mitt Romney capturing the White House and the party seizing even narrow control of the Senate (AP Photo/Stephan Saviola, File)

Sometimes the lede buries itseslf; the point will hide in plain sight. It is an easy thing to do, hiding in plain sight, when nobody is looking for you:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.

(Liptak)

Two sentences; did you miss them?

No, really, this is important: “But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do.”

One of the hallmarks of the Roberts Court is its disrespect for standing case law and precedent. The Chief Justice is an example of why the longstanding conservative complaint about liberal judicial activism is a swindle. John Roberts seems to apply more of an “if it feels good, do it” attitude to the judiciary, but at the same time he’s conscious of appearances, which is why conservative majorities on the Court will occasionally do that weird thing where they overturn case law but then disclaim that they’re not overturning anything, such as we’ve seen in Ricci (Civil Rights Act) and Texas (Voting Rights Act). And there is also the conservative majority’s clear tendency to throw cases for politics by carving out one-time exceptions to the law, such as we saw in Safford, in which a school was forgiven a sex offense because ignorance is bliss and, well, why would a young girl be upset by adults forcing her to strip down so they can leer and prod at her body, and Ricci, in which the New Haven Civil Service Board followed the law but was held in fault for doing so.

One of the reasons this Court is so hard to predict is, in fact, its inconsistency. And the reason it is hard to pin down that inconsistency is because it is so inconsistent. To the one, it is not a purely institutionalist streak. To the other, it is not purely traditionalist. Rather, it seems Chief Justice Roberts is happy to keep pushing the image of calling balls and strikes just as long as nobody points out that the strike zone keeps changing.

The Constitution is John Roberts’ playground, nothing more. Inconsistency will be the hallmark of his chiefdom. (more…)