Tuesday, October 23, 2012
Here's an especially intriguing sample:
In The Oath you refer to Justice Clarence Thomas [pictured] as a “conservative intellectual path-breaker.” You mention this in the context of some of his First Amendment opinions. Of the 29 First Amendment free expression opinions rendered by the Roberts Court, however, Justice Thomas has authored only two majority opinions, neither of which was path-breaking. (See Reichle v. Howards, 2012 (8-0) and Washington State Grange v. Washington State Rep. Party, 2008 (7-2)).
In what sense, then, do you seem him as a First Amendment “path-breaker”? Which of his separate opinions do you see as point the path to future First Amendment precedents?
One of the many paradoxes of Justice Thomas’s tenure is that he has been influential without writing many important majority opinions. Indeed, it is difficult to think of a Justice who has been in the majority as often as Thomas for as long as Thomas and written so few important majority opinions. (Indeed, here’s an interesting exercise: What’s the most important majority opinion Thomas has written? Beats me.)
Still, I think Thomas’s concurrence in McIntyre v. Ohio Elections Commission and his dissent in Nixon v. Shrink Missouri Government PAC include themes that are clearly reflected in Justice Kennedy’s decision in Citizens United.
Collins and Toobin also discuss Roberts on affirmative action and the Court's work load. An interesting read!