Wednesday, September 26, 2007

"Thomas's Impact on Legal Debates Exceeds High-Court Influence"

That's the title for this article from Bloomberg. There's an interesting comment from liberal law scholar Mark Tushnet. Excerpts:
Clarence Thomas may be the best known, most controversial of the nine U.S. Supreme Court justices. Whether his influence matches his prominence is another matter.
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His approach has earned him a circle of admirers and words of respect from some scholars who reject his conclusions. At the same time, his reluctance to compromise even when he's part of a majority means he often writes a separate opinion, limiting his power to speak for the court and shape the law.

``He's making an impact perhaps within the academy and perhaps even within society, but I'm not sure he's making much of an impact on the court itself,'' said David Stras, a former Thomas law clerk who now teaches at the University of Minnesota Law School in Minneapolis. ``And the reason why is that he's often writing for himself.''

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Even more so than fellow court conservative Antonin Scalia, Thomas stands out as the justice most willing to rethink -- and discard -- long-held legal assumptions.

In 1992, Thomas questioned whether the constitutional ban on cruel and unusual punishment applied to prisoner abuse. In 2004, he wrote that the Constitution's prohibition on government establishment of religion restricts only federal officials, not the states.

Earlier this year, he advocated overturning a 1968 decision that conferred free-speech rights on public-school students. Thomas pointed to what he said was the original understanding of the First Amendment and the role of the earliest American schools as places where ``teachers taught and students listened.''

Each of those positions stems from Thomas's view, shared with Scalia, that the ``original understanding'' of the Constitution should guide today's application of it.

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Some legal scholars and advocates who disagree with Thomas, including Harvard law professor Mark Tushnet, give him credit for original and provocative thought. Tushnet wrote in a 2005 book on the court that Thomas was more likely than Scalia to leave an enduring imprint on constitutional scholarship.

``I would not object to being associated with the words, `He's gotten a bum rap,''' Tushnet said in an interview.

Thomas's backers say he writes with an eye toward the future. ``Some of the things that he's talking about need to percolate in the legal culture for a while,'' said Chris Landau, a Washington lawyer who clerked for Thomas during his first year on the court. ``It's very possible that those could be majority opinions in the future.''

* * *

Inside the court, Thomas is a popular figure. During arguments, he shares private jokes with Justice Stephen Breyer, often a foe in constitutional cases. Court clerks, police officers and interns describe him as the friendliest justice, sometimes spending hours talking to a new acquaintance.

Thomas spends much of his summer on the road in a recreational vehicle. Earlier this month, he drove his RV to Winston-Salem, North Carolina, for a football game between Wake Forest University and his beloved Cornhuskers of Nebraska, his wife's home state. Thomas had one special request: to meet professional basketball star Chris Paul, who played at Wake Forest.

Among court-watchers, Thomas remains a subject of fascination, with biographies almost annual events. His own book, ``My Grandfather's Son: A Memoir,'' covers his life through his confirmation hearings and may rekindle the passions that surrounded his nomination.

Longtime friend Larry Thompson, general counsel of PepsiCo Inc., said Thomas receives ``undue focus'' in part because some in the media see a black conservative as an ``oddity.''

``I'm just surprised and saddened by the attention he gets,'' Thompson said. ``He's an independent thinker. He's a good lawyer. He bases his decisions in large part on scholarship.''

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