Sandy Hook

Sandy Hook

Thursday, December 10, 2009

Supreme Court Judge Clarence Thomas takes swipe at fellow judge

Surely readers are not surprised that Judge Clarence Thomas would take a swipe at the U.S. Supreme Court's newest justice. Because she's a woman? Or because she's of Hispanic descent? Or maybe just because she knows the law better than he does?

The Supreme Court released its first four decisions in argued cases this term on Tuesday.They were all minor, but one was notable for being Justice Sonia Sotomayor’s Supreme Court debut and for prompting a testy concurrence from Justice Clarence Thomas.

The case concerned whether federal trial-court rulings concerning the lawyer-client privilege may be appealed right away. Justice Sotomayor, with methodical reasoning and a formal writing style, said no.

“Permitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings,” she wrote, “would unduly delay the resolution of district court litigation and needlessly burden the courts of appeals.”

The decision was unanimous, but Justice Clarence Thomas declined to join the part of Justice Sotomayor’s opinion discussing why the cost of allowing immediate appeals outweighs the possibility that candid communications between lawyers and their clients might be chilled. 

In a concurrence, Justice Thomas took a swipe at his new colleague, saying she had “with a sweep of the court’s pen” substituted “value judgments” and “what the court thinks is a good idea” for the text of a federal law.

NOTE: I thought I posted this yesterday but it was sitting in draft.


  1. Deciding that a procedural question (the manner in which such appeals should be handled) should be addressed in a manner that disrupts procedure as little as possible is a 'value judgment'? I thought it was the much vaunted 'common sense' that the right talks about so much.

    I don't know if I agree or disagree with the decision, but deciding a procedural question on a procedural question makes sense to me. I can understand it, and if I didn't like it I would attempt to find a way to argue my disagreement with the decision that addressed the legality of the decision. I wouldn't sulk and say the decision wasn't legal without offering an argument in place of ad hominem attacks.

    What's more, the decision was unanimous. So Thomas didn't even disagree with it. Instead he is being petty because... well, I'm not sure. Just to be petty?

  2. I don't think you have to know a lot about law in this case. For Thomas to decide with the majority and then comment she had “with a sweep of the court’s pen” substituted “value judgments” and “what the court thinks is a good idea” for the text of a federal law" is more than unprofessional. He doesn't have a great rep as a jurist.

  3. 'He doesn't have a great rep as a jurist.'

    This is an understatement. As a Supreme Court justice, his record has been purely political. He makes conservative value judgments regardless of the law on the matter.

    Prior to becoming a Supreme Court justice, he did not have a terribly good reputation as a legal thinker. Objective legal experts believed that he substituted his personal moral compass for points of law.

    I'm not a lawyer, and MY view of law is essentially that of an anarchist despite a pragmatic recognition that government is not only necessary but inevitable and inescapable. So I may not be the best judge of legal questions myself...

    But even I know there is a word for accusing others of one's own vices.