In point of fact, Thomas writes about 1⁄9 of the Supreme Court opinions and deals with about 1⁄9 of the other legal work (motions, etc), as would be expected of a body with nine members.
My understanding was that Thomas only writes his fair share when you include all his idiosyncratic one-man dissents which influence no one and have failed to move the Overton Window. Is that wrong?
I can’t speak to behind-the-scenes influence.
Kind of important a thing to leave out in a political role like that of the nine.
As a lawyer, I don’t think any of the current Justices has historically notable intellectual influence except Scalia (Rehnquist also was unusually influential, by he is no longer on the court). Speaking of which, neither Rehnquist nor Scalia are outside the mainstream of American legal thought. Their legal theories are notably on the conservative side, but well within the current Overton window of legal thought.
Gee, I wonder why. Could it have something to do with Rehnquist and Scalia’s opinions actually being more persuasive, as I already suggested?
Personally, I am not bothered by Thomas’s originalism, as you seem to think; if I had to classify myself, I’d have to admit to considerable sympathy with his positions as I’ve noted in the past on LW (I think, possibly I argued it elsewhere), originalism is the only position which makes any kind of sense, and the attempts to move away from it and reinterpret it as liberals wish reflects the fact that the Constitution is atrociously outdated and irrelevant because the updating mechanisms have failed completely due to the continual growth of the USA. (When was the last Constitutional amendment which mattered? Do you expect to see another meaningful amendment in your lifetime? I don’t.) But the American political system is unable to acknowledge this or come up with any solution, and so we get absurdities like the Supreme Court saying the Constitution protects a right to gay marriage or trying to ban the death penalty, which makes about as much sense as saying the Bible or the Koran protect a right to gay marriage or disapprove of the death penalty.
What I am bothered by is his apparent failure to contribute much to the Court in asking questions to get to the heart of issues, mold or at least influence the thinking of his peers, and influence the majority opinions which matter. A justice who neither is influenced nor influences is a waste of space, and even harmful—like IE6 or Google’s neglect of Google Reader. In contrast, I much prefer to read Rehnquist or Scalia’s opinions because they were not so blind or irrelevant.
I’m skeptical whether many 100 IQ students could create a career path like Thomas’ path.
I’m sure they couldn’t, at least not without extenuating circumstances like very able aids or an extremely gross imbalance of verbal and other skills. (IQs are just of the general factor, individual skills can be much higher or lower than the mean; someone can write very well even if they wouldn’t understand a statistic if it bit them on the arse.)
But Thomas could easily be one of the 80k that the normal distribution implies, or be a bit below, maybe 97th or 98th percentile or something, which increases the numbers of candidates substantially (more than 3x) while still being plausible. (When I look at thresholds on IQ and characteristics broken down by deciles, I get the impression that for anything which is a fraction of a standard deviation, it is more a difference of quantity than quality; someone 1⁄3 or 2⁄3 SDs lower can do just about anything the other person can do, but with more time and effort, perhaps, while at 1 SD it starts to seem like there are things the lower person just won’t get with any reasonable amount of time/effort. So a lot of 130 is just plain out of reach for 100, but not for 120.)
As well, the normal distribution is rarely exactly true; for example, when it comes to intelligence, very rare or de novo mutations mean there is an excess of retarded or very disabled people than the calculations would predict, because one mutation in the wrong place can break a mind, and there are a few phenomenon which might create little bumps in the black tail as well—most obviously, given your mentioned examples, immigrants from Africa or the Caribbeans, but a few other things like assortative mating might also happen.
My understanding was that Thomas only writes his fair share when you include all his idiosyncratic one-man dissents which influence no one and have failed to move the Overton Window. Is that wrong?
Yes. Check out Scotusblog if you want to look at other terms.
What I am bothered by is his apparent failure to contribute much to the Court in asking questions to get to the heart of issues
Oral argument is performance, not persuasion. The evidence of influence is citation of majority decisions in future terms and future courts. In other words, the rest of that paragraph would be just as true without reference to questions at oral argument. Please stop repeating the stupid talking point.
Personally, I am not bothered by Thomas’s originalism, as you seem to think
Thomas is an originalist only if one thinks that the US Constitution is intended to codify natural law. Many originalists across the political spectrum don’t. Further, I’m much more of a textualist, and textualism and natural law get together like oil and water.
But Thomas could easily be one of the 80k that the normal distribution implies, or be a bit below, maybe 97th or 98th percentile or something, which increases the numbers of candidates substantially (more than 3x) while still being plausible. (When I look at thresholds on IQ and characteristics broken down by deciles, I get the impression that for anything which is a fraction of a standard deviation, it is more a difference of quantity than quality; someone 1⁄3 or 2⁄3 SDs lower can do just about anything the other person can do, but with more time and effort, perhaps, while at 1 SD it starts to seem like there are things the lower person just won’t get with any reasonable amount of time/effort. So a lot of 130 is just plain out of reach for 100, but not for 120.)
This is the heart of the issue. I think an 85 IQ would have difficulty consistently simulating a 100 IQ in professional life. But the evidence on this is too sparse for me to persuasively present in this forum. So I’m trying to highlight how we see too many black swans. Which itself is complicated by the difficulty in distinguishing between 120 &130.
The Constitution protects all rights that are originally retained by the people:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
If there is a natural right to gay marriage, the Constitution protects it. That is, the Constitution protects gay marriage to the extent that recognition of gay marriage is in some sense naturally required as a precondition of fostering “life, liberty, and the pursuit of happiness”; as are the rights to free speech and free exercise of religion, to self-defense and self-organized collective defense, and all of the other rights recognized in the U.S. Constitution. A natural right “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” (United States v. Cruikshank, 92 U. S. 542, 553 (1876))
I like the Ninth Amendment too, but it’s worth noting that the majority opinion in Obergefell v. Hodges cited the due process and equal protection clauses, not natural rights: one could argue that the rationale was absurd even if the outcome was correct.
So, the 14th Amendment protects “privileges or immunities.” There’s some of historical evidence of what those might include. But in the Slaughterhouse cases, the Supreme Court drained the phrase of any legal significance. There are many legal scholars across the political spectrum who think the Slaughterhouse cases are inconsistent with original public meaning.
Those scholars who think Obergefell, Roe, and such are consistent with original public meaning tend to say that “substantive” due process should be understood as code for “privileges or immunities.”
It’s a controversial position that natural rights are what the Constitution protects, even among legal scholars who think the Constitution should be interpreted according to original public meaning (most “originalists”).
My understanding was that Thomas only writes his fair share when you include all his idiosyncratic one-man dissents which influence no one and have failed to move the Overton Window. Is that wrong?
Kind of important a thing to leave out in a political role like that of the nine.
Gee, I wonder why. Could it have something to do with Rehnquist and Scalia’s opinions actually being more persuasive, as I already suggested?
Personally, I am not bothered by Thomas’s originalism, as you seem to think; if I had to classify myself, I’d have to admit to considerable sympathy with his positions as I’ve noted in the past on LW (I think, possibly I argued it elsewhere), originalism is the only position which makes any kind of sense, and the attempts to move away from it and reinterpret it as liberals wish reflects the fact that the Constitution is atrociously outdated and irrelevant because the updating mechanisms have failed completely due to the continual growth of the USA. (When was the last Constitutional amendment which mattered? Do you expect to see another meaningful amendment in your lifetime? I don’t.) But the American political system is unable to acknowledge this or come up with any solution, and so we get absurdities like the Supreme Court saying the Constitution protects a right to gay marriage or trying to ban the death penalty, which makes about as much sense as saying the Bible or the Koran protect a right to gay marriage or disapprove of the death penalty.
What I am bothered by is his apparent failure to contribute much to the Court in asking questions to get to the heart of issues, mold or at least influence the thinking of his peers, and influence the majority opinions which matter. A justice who neither is influenced nor influences is a waste of space, and even harmful—like IE6 or Google’s neglect of Google Reader. In contrast, I much prefer to read Rehnquist or Scalia’s opinions because they were not so blind or irrelevant.
I’m sure they couldn’t, at least not without extenuating circumstances like very able aids or an extremely gross imbalance of verbal and other skills. (IQs are just of the general factor, individual skills can be much higher or lower than the mean; someone can write very well even if they wouldn’t understand a statistic if it bit them on the arse.)
But Thomas could easily be one of the 80k that the normal distribution implies, or be a bit below, maybe 97th or 98th percentile or something, which increases the numbers of candidates substantially (more than 3x) while still being plausible. (When I look at thresholds on IQ and characteristics broken down by deciles, I get the impression that for anything which is a fraction of a standard deviation, it is more a difference of quantity than quality; someone 1⁄3 or 2⁄3 SDs lower can do just about anything the other person can do, but with more time and effort, perhaps, while at 1 SD it starts to seem like there are things the lower person just won’t get with any reasonable amount of time/effort. So a lot of 130 is just plain out of reach for 100, but not for 120.)
As well, the normal distribution is rarely exactly true; for example, when it comes to intelligence, very rare or de novo mutations mean there is an excess of retarded or very disabled people than the calculations would predict, because one mutation in the wrong place can break a mind, and there are a few phenomenon which might create little bumps in the black tail as well—most obviously, given your mentioned examples, immigrants from Africa or the Caribbeans, but a few other things like assortative mating might also happen.
Yes. Check out Scotusblog if you want to look at other terms.
Oral argument is performance, not persuasion. The evidence of influence is citation of majority decisions in future terms and future courts. In other words, the rest of that paragraph would be just as true without reference to questions at oral argument. Please stop repeating the stupid talking point.
Thomas is an originalist only if one thinks that the US Constitution is intended to codify natural law. Many originalists across the political spectrum don’t. Further, I’m much more of a textualist, and textualism and natural law get together like oil and water.
This is the heart of the issue. I think an 85 IQ would have difficulty consistently simulating a 100 IQ in professional life. But the evidence on this is too sparse for me to persuasively present in this forum. So I’m trying to highlight how we see too many black swans. Which itself is complicated by the difficulty in distinguishing between 120 &130.
The Constitution protects all rights that are originally retained by the people:
If there is a natural right to gay marriage, the Constitution protects it. That is, the Constitution protects gay marriage to the extent that recognition of gay marriage is in some sense naturally required as a precondition of fostering “life, liberty, and the pursuit of happiness”; as are the rights to free speech and free exercise of religion, to self-defense and self-organized collective defense, and all of the other rights recognized in the U.S. Constitution. A natural right “is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” (United States v. Cruikshank, 92 U. S. 542, 553 (1876))
I like the Ninth Amendment too, but it’s worth noting that the majority opinion in Obergefell v. Hodges cited the due process and equal protection clauses, not natural rights: one could argue that the rationale was absurd even if the outcome was correct.
So, the 14th Amendment protects “privileges or immunities.” There’s some of historical evidence of what those might include. But in the Slaughterhouse cases, the Supreme Court drained the phrase of any legal significance. There are many legal scholars across the political spectrum who think the Slaughterhouse cases are inconsistent with original public meaning.
Those scholars who think Obergefell, Roe, and such are consistent with original public meaning tend to say that “substantive” due process should be understood as code for “privileges or immunities.”
Huh? What would the word “protection” in the latter clause refer to, if not protection of natural rights?
It’s a controversial position that natural rights are what the Constitution protects, even among legal scholars who think the Constitution should be interpreted according to original public meaning (most “originalists”).