March 7, 2019

WHEN LAW PROFESSORS ARE ALARMIST: In Prof. Garrett Epps’ comments about New York Times v. Sullivan, we are told, “Thomas managed to attack the basis of American press freedom.”

The basis of American press freedom is the First Amendment. New York Times v. Sullivan rests on an interpretation of the First Amendment that Thomas thinks is wrong. To believe that New York Times v. Sullivan is the basis of American press freedom, one must believe that the American press was not free for the 175 years or so the country was in existence before Sullivan was decided.

Honestly, and this is very much an admission against interest, I think Thomas has a point.

It is a fair critique of sorts to argue that Thomas often goes his own way, telling the Supreme Court that its jurisprudence is wrong, and sometimes that it’s been wrong for a century or more. He sticks to his own interpretations, making him a sort of anti-William J. Brennan, who was famously flexible in the process of assembling the necessary 5 votes to reach a desired outcome. As with lefties who wish conservatives on the Court followed a “living Constitution” methodology, wishing that Thomas were more like Brennan seems . . . unwise.

But there’s good advice for President Trump here: If you want to maximize your influence on the Court over time, appoint justices who are more collaborative in their approach.

UPDATE: In response to the comments, Brennan was collaborative in approach, but inflexible in his goals. Contrary to, say, John Roberts.

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