A Few More Thoughts on Justice Thomas's Unfriendly Mohawk Concurrence

There has been a bit of discussion in the blawgosphere (and in the comments on this blog) about two things related to the Court's recent opinion in Mohawk Industries:  (1) is there really a tradition that a new Associate Justice gets a unanimous opinion for his or her first?  (2) Did Justice Thomas's decision to concur (in part) in the judgment, to write separately, and to toss around the red-meat vocabulary of judicial activism in his concurrence amount to "total[ ] rude[ness]" (as I put it), a "swipe" at a new colleague (as Adam Liptak put it in the New York Times), or just business as usual?

At Volokh, John Elwood summarizes the data on question 1, and I confess that what I had understood as a solid tradition of unanimous first-time opinions is at best a spotty tradition.  Six of the current nine enjoyed unanimity their first time out; three did not.  I'm no mathematician, but I think that's something like one third of them who wrote for a divided Court.  So while people may think there's such a tradition, Justice Thomas's concurrence made for a less unusual first outing for Sotomayor than I first wrote.

On the second question, though, I'm still comfortable that Thomas's decision to write separately, and to write separately as he did, was unfriendly and unnecessary.  The decision whether (and how) to write separately is an exercise of judgment.  You don't have to write separately in any given case; you choose to.  So each time, you're thinking to yourself, "Do I want to write separately in this case?  Is this case the right case to say what I want to say?  If I don't say it in this case, will I have a chance to say it in another case?  And if I do want to express my disagreement in this case, just how do I want to phrase it?"

Think about your own internal dialogue when you're (for example) deciding whether to speak up at a faculty meeting, whether to vote against a popular faculty candidate, whether to vote against a colleague's tenure or promotion.  And when you do decide to go ahead and speak, or to vote no, think about the care with which you probably choose your words.  I'm not saying any of these decisions is identical to a Justice's decision whether to write separately; I'm saying simply that we are all familiar with the internal dialogue that accompanies a decision about publicly speaking.

If you think about it that way, it's pretty clear, to me at least, that Justice Thomas really didn't have to write at all in Mohawk Industries, and that if he was going to write, he could have chosen words that didn't call up the trope of judicial activism. 

Surely there will be another case that will give Justice Thomas the chance to say what he wants about interlocutory appealability and the collateral order doctrine.  (Maybe it'll even be a case where what he wants to say determines the outcome, rather than just shattering unanimity.)  Even if it isn't strictly necessary to give a new Justice a unanimous debut opinion, it's at least sort of nice to give her that little shot in the arm if you can do it without endorsing a conclusion that you can't bear. 

And surely, when your new colleague has just emerged from a confirmation process in which her opposition settled on the core strategy of deriding her as a "judicial activist," you would think twice before criticizing your new colleague's very first opinion for making "value judgments" and "subordinat[ing]" what a statute says to "what the Court thinks is a good idea."

So did Justice Thomas break a firm Court tradition in Mohawk Industries?  It appears not.  Did he nonetheless behave uncollegially?  I think he did.

Comments

[Orin Kerr]

Eric,

Thanks for the follow-up. I think the comparison to a faculty meeting vote on a person's future is revealing, but unpersuasive. At most schools, such votes can be intensely personal, and there is a tradition at many schools of a social etiquette that very strongly favors the positive. In that setting, genuinely critical words must be chosen carefully, as the speaker needs to translate from normal-speak into faculty-meeting-speak as accurately as possible.

Supreme Court opinions are different. Each Justice has a well-established set of views and positions, and it is understood that those positions carry no personal enmity or grudges. As a result, when one Justice dissents from an 8-Justice opinion -- especially expressing a position he has expressed before -- it would not widely be thought that the dissent was any kind of personal attack on the person who happened to be assigned the opinion. Thats my sense, at least.

[Eric Muller]

I see your point, Orin.

The faculty meeting example might seem revealing, but I think it's probably less revealing than you might think. I chose it because I imagine many readers of this blog to be law professors, and it seemed the most obvious example of public speaking where value gets attached to words. I might have chosen countless other examples -- including settings where, as you say, it's well understood that people have "well-established sets of views and positions," and "it is understood that these positions carry no personal enmity or grudges."

(Incidentally, I think that on most law faculties it's pretty well understood by and among most in the big "middle" of the faculty that public statements "carry no personal enmity or grudges," and are usually the expression of pretty well-known positions we've previously staked out, and yet we do tend to choose our words very carefully. In my experience, it's the folks out toward the far "edges" of faculties who tend to speak more explosively and with less regard for how their words will be heard and experienced by others.)

It seems to me that your claim really is this: opinion-crafting on the Supreme Court (even for its newest, yet-to-be-socialized member) is a closed doctrinal conversation among nine well-known participants, who can speak to one another through their public writings without fearing that the other participants in the conversation (or, apparently, other listeners) will scan their writings for such "tonal" matters as snubs, praise, slights, digs, inflections, ingratiation, and the like. The Justices all understand that they're just "doing their work," and nothing personal is either intended or felt.

You've been at the Court "on the inside," Orin, and I haven't, so to some extent I have to defer to what you report.

But not entirely -- because volumes of Supreme Court history have been written about the personalities and temperaments of the Justices and their interpersonal relations, as expressed both privately in their correspondence and publicly in their opinions. In the fields of judicial biography and Supreme Court history, it is commonplace to examine private and public statements of the Justices for evidence of the Justices' own personalities, of their relationships with each other, and of the positions they occupy within the "political" body that is the Supreme Court. This has always seemed to me a valid field of inquiry.

Thus, while it might be true that everyone on the Court (including Justice Sotomayor) attaches no personal meaning to the voting decisions and phrasing choices of their fellow Justices, I tend to doubt it.

And in any event, my initial comment was that Justice Thomas was rude to take the occasion of Justice Sotomayor's debut opinion as a propitious moment to write separately with words that echoed the political accusations she had just weathered. Even if their internal conversation is "different" in the way you suggest from other kinds of public discussion, their conversation is intensely public, and I, as a reader, am a party to it. Thus, even if Justice Sotomayor didn't subjectively experience Justice Thomas's actions as rude, that doesn't mean they weren't.