February 25, 2014
On Friday Toobin, who writes about the court for The New Yorker, posted a blog item inveighing against what the headline called “Clarence Thomas’s Disgraceful Silence.” We say “evidently” he disagrees because he doesn’t acknowledge, much less respond to, Thomas’s account of his own behavior. Instead Toobin sets out to stigmatize Thomas as some sort of deviant. . . .
Toobin’s likening of Thomas to a defiant schoolboy is altogether inappropriate. Who exactly is the “schoolteacher” toward whom we are supposed to imagine Thomas is insubordinate? The lawyers whose cases are before the court? No, he (like the other justices) is in a superior position to them. The other justices? No, each of them is Thomas’s equal.
The position of Supreme Court justice is unusual in that it is one of the few institutional roles in which one is subordinate to nobody. Like other federal judges, the justices do not answer to the voters or, once confirmed, to the political branches of government (except in the rare case of impeachment). Unlike other federal judges, their work is not subject to review by a higher court. The chief justice, or sometimes a senior associate justice, has the procedural authority to assign the writing of a majority opinion. But no justice is compelled to join such an opinion. Each is free to vote as he sees fit and to express his own views in concurrence or dissent.
What is it about Thomas that leads Toobin to believe that he, apparently alone among the justices, has a duty to be submissive? Or perhaps we should ask: What is it about Toobin?