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December 08, 2009


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Orin Kerr


Are you joking?



Are you saying that Thomas should have not issued a concurring opinion in the case because of this?

Marc DeGirolami

FWIW, this practice, if it exists, was not followed for Justice Rehnquist when he came on the court. The case is Schneble v. Florida, in which Justice Marshall's dissent was joined by Justices Douglas and Brennan.


This strikes me as a complete non-issue. This is just Thomas being Thomas, apparently (I haven't followed his jurisprudence on this rather dry area of civil procedure) adhering to a position he had already articulated in a prior case. The reference to "value judgments" is completely innocuous, just one of the most common tropes of conservative Justices when they disagree with whatever other Justices are doing. It's basically devoid of meaning and adds nothing to the conversation, but you have to stack inference upon inference to interpret it as a swipe at Sotomayor specifically. If he'd called her out for not showing enough "empathy" to corporations in their consultations with attorneys, that might be newsworthy.

I was surprised to find Adam Liptak buying into this little controversy. Surely he's read enough opinions by this time to tell the difference between Thomas being snarky and Thomas articulating a fairly minor disagreement on a rather unimportant legal issue?


flame, right?

Howard Wasserman

I read this not as a swipe at Sotomayor as much as a swipe at the Collateral Order Doctrine. He was not accusing Sotomayor of making value judgments in her analysis. He was criticizing the very existence of a doctrine that enables such value judgments and which every other member of the Court hooked onto.


How is it a swipe at Sotomayor when it was a unanimous opinion? Wouldn't it be a swipe at his 8 other colleagues?


I agree with the criticism of Liptak. His noting of the use of "undocumented" over "illegal" alien is more on point.

Blackmun also did not get a unanimous opinion. There the dissent was quite "personal" and probably actually a bit against him personally.


What a douchey post. I hope this is a joke.

Justice Thomas disagrees with what the Court has done with the collateral order doctrine and thinks that the majority opinion exacerbates the flaws... yet he's supposed to keep his disagreement to himself because writing separately in a Justice's debut opinion is "rude"?

I hope no one on the Supreme Court is so pompous and unprofessional as to think that opinions are somehow the property of their authors and that heated substantive disagreement with an opinion is "personal." Justice Thomas has been consistent as both a formalist and a judge with little or no use for stare decisis. Given his principles, it should not be surprising, nor should it be cause for offense when he writes separately to criticize a majority opinion that departs from the text of a statute and reasons based on policy and precedent.

To the extent his criticism is leveled at individual Justices, it's at the other six who joined as much as it's leveled at Justice Sotomayor.

Most likely, the case was assigned to Sotomayor because the straw vote after argument was unanimous, and her reasoning provoked the separate opinion. That is often how appellate opinions come together. It's unreasonable to subordinate that decisionmaking process to a supposed "tradition" of totally unanimous debut opinions, and it seems to me that it is unavoidable that this will sometimes happen.

This post is puzzling, as it appears to come from someone who would know better.


In context, it's obviously a criticism of Cohen, not Sotomayor.


I think American lawyers are too concerned, often obsessed, with the personalities of the Supreme Court. Who cares of Thomas did what he did. Certainly the chemistry or hostility among justices may have an occasional impact on how cases are decided but any reasonable personal would agree that cases are almost invariably decided (and thus the common law tradition is kept alive) but factors other than the personalities of the justices (these factors include the law and other considerations such as justice and fairness). It is true that, if academia stopped thinking about petty incidents at the St.C., several scholars would be sadly unemployed.

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