Justice Thomas and a SCOTUS for the People

It never ceases to amaze me how observers pore over Justice Clarence Thomas’s every utterance and written word, such as in this piece over at the Atlantic today examining his theory of judicial opinion writing. In the interest of full disclosure, I should note that I am proud to have been a clerk for Justice Thomas, early in his time on the Court (1994-1995). I’ve rarely met such an inspirational and courageous person. He leads by example as well as by the written and spoken word.

Some professors seem to have made a cottage industry out of criticizing Justice Thomas’s opinions. There was also, if one recalls, Senator Harry Reid’s claim that Justice Thomas’s opinions were poor — but then he had a hard time listing any when challenged. Now, it seems, that some think Justice Thomas’s opinions are too short or don’t use enough polysyllabic words. To be frank, I don’t recall the media swarming over any other Justice’s opinions this way, and certainly not those of Thurgood Marshall, the great black liberal justice. Could the point of contention possibly be disagreement with his views rather than a fair evaluation of his craft?

In a recent speech, Justice Thomas explained in public what he always said in private to those of us who clerked for him: He wants his opinions to be understood not by the small group of Supreme Court practitioners or law professors who specialize in the Court, but by the general public. He always said that he wanted his opinions to be something that would explain the legal dispute, precedent, and reasoning to your mother. 

To me, that is a higher standard than writing a long, jargon-filled opinion that takes 50 pages to say what could be expressed in 10. As someone once said, “I didn’t have time to write a concise letter, so I wrote this long one instead.” But it also tells us something important about Justice Thomas — he does not think the Court should cater to a tiny elite; its actions should be understood by the people for whom the government acts in the first place.