Tuesday, September 07, 2010

The Best Supreme Court Justice is Also the Most Diverse

At about the time of the Harriet Miers fiasco a few years ago, I got into an online debate with someone over the intellectual prowess of Clarence Thomas on the U.S. Supreme Court. My position, at the time and today, is that Justice Thomas has a better understanding of constitutional law than anyone on the Court, including Justice Antonin Scalia.

The guy who I was arguing with couldn't disagree with me more, repeating the tired trope that Thomas was Scalia's waterboy who simply signed off in agreement with every opinion Scalia wrote. Ignoring that this guy, who was not a lawyer, probably never even read any of Scalia's or Thomas' opinions, I politely challenged him to back up his assertion. He couldn't do it, of course, and resorted to rhetorically asking me if I was serious in my suggestion that Justice Thomas was the best Justice on the Court.

Looking back, it's too bad Supreme Conflict by Jan Crawford Greenburg hadn't been released, or maybe even written, when I got into this debate. If Greenburg's excellent book had been around, I could have referenced the passage where it was revealed that Justice Thomas had changed Justice Scalia's mind on two different cases - within the first few weeks of Justice Thomas taking his hard fought seat on the Court.

All of the above is kind of an introduction to a short New York Times article I just read about the law schools that Supreme Court Justices hire their clerks from. As therein noted, since 2005 about half of all the clerks who have worked for a Supreme Court Justice went to law school at either Harvard or Yale. Everyone else usually came from exclusive law programs at the University of Virgina, Stanford, Columbia and the University of Chicago. The lone exception to this hiring trend is Justice Thomas, who has expressly said his preference is to look for clerks from non-Ivy League schools, which the Times notes includes a place like Creighton University (which is in Nebraska). Justice Thomas' reason for this preference is simple: clerks should come from a wide range of backgrounds. For a so-called "conservative" whom many on the Left continue to wrongly accuse of not having the intellectual wherewithal to be on the Court, this is pretty "progressive," outside of the box thinking. I like it.