What is a Hard Case for Justice Thomas?

As noted in a NY Times article, Justice Thomas made a rare public appearance recently. The article paints an interesting picture of the Justice, who describes himself as sometimes morose. Putting aside such issues of temperament and mood, here I want to focus on what Justice Thomas says about judging. The article concludes as follows:

“This job is easy for people who’ve never done it,” he said later. “What I have found in this job is they know more about it than I do, especially if they have the title ‘law professor.’ ”

Prima facie, that's a fair point. It's generally easier to criticize someone else's decisions than to make those decisions yourself. Thus, what Justice Thomas appears to be saying is that the burdens of responsibility make decision making harder. That's almost certainly right.

And yet, subject to some critical scrutiny, the point would seem to undermine Justice Thomas's philosophy of judging. More than any other Justice in recent history, Justice Thomas is committed to the separation of law and morality. Judges, in his view, should interpret authoritative texts (such as statutes and the Constitution) to mean what the words were generally understood to mean at the time of their enactment. This approach--generally now called "public meaning originalism"--typically carries with it the further postulate that judges who resort to moral reasoning are illegitimately imposing their own values on the public.

To be sure, not all public meaning originalists say that. Some "neo-originalists" think that the semantic content of the text is very frequently indeterminate, and that when it is, judges are authorized to make judgments based upon, among other things, moral considerations. But Justice Thomas is not such a neo-originalist. He is much more of an "old school" originalist who thinks that the original meaning of the text is almost always all one needs to resolve legal questions. Certainly Justice Thomas has both authored and signed onto opinions criticizing his colleagues for injecting moral considerations into legal analysis in circumstances where those colleagues no doubt thought the text a mere starting point.

Why then would Justice Thomas feel burdened by the responsibilities of making a decision? We can well imagine that even for an old school originalist, there are hard cases. But for someone with Justice Thomas's professed views, a hard case is one in which the judge needs to do a whole lot of hard work to try to resolve a historical linguistic question as best he can. He may need to burn the midnight oil reading 18th century newspapers, but he's not going to lose sleep agonizing over whether he is doing the right thing in any moral sense.

And yet, Justice Thomas appeared to say precisely that cases are hard because they pose hard issues about what the right thing to do is, all things considered. In a statement that is otherwise admirable for his recognition of the importance of church-state separation, Justice Thomas answered a question as follows:

“There are some cases that will drive you to your knees,” he added. “In those moments you ask for strength and wisdom to have the right answer and the courage to stand up for it. Beyond that, it would be illegitimate, I think, and a violation of my oath to incorporate my religious beliefs into the decision-making process.”

I suppose it's possible to be driven to your knees about whether to credit Alexander Hamilton or James Wilson as better expressing the original understanding about state sovereign immunity, but the much more natural way of reading this answer is that Justice Thomas is saying that he seeks the wisdom, strength and courage to resolve cases in ways that are not simply a matter of linguistic or historical fidelity. He appears to be saying, both here and in his comments about the burdens of judgment, that he actually worries about doing what is right. If so, it's too bad he feels the need to pretend otherwise in other settings.

Posted by Mike Dorf