Bad form
Mike Rappaport

I am not exactly sure whether this post belongs on the Originalism Blog, but I think it does.  Some might regard it as "political" but originalism is often subject to political attack.

In a recent essay, Randall Kennedy repeats the familiar charge against Clarence Thomas: He just was not smart enough for the job.  And, after making that criticism, he notes that  Thomas displays "a jurisprudence of reaction that makes him the most backward-looking facilitator of social injustice since James Clark McReynolds (1862-1946), one of the infamous "Four Horsemen" who sought to undo the New Deal."

Look, if you don't like Thomas's originalism because you favor on political grounds certain outcomes, fine.  Say so.  Those of us who are originalists will see the criticism as making a political point.

But Kennedy does not do that. Instead, he feels the need to criticize Thomas's intellect. That, despite being fairly common, is awful.

As an originalist, I find Justice Thomas's opinions to be quite excellent.  His originalist opinions are consistently powerful and principled.  He is courageous and often moves constitutional discourse, even though he may be a sole dissenter.  Of course, there are times when I believe Thomas's opinions are mistaken. But I believe that about all the justices and probably think that Thomas makes the fewest mistakes.

Given my opinion about Thomas, I can only regard Kennedy's as a horrible slander.  It just ain't right.  

Originalists have often been criticized on exactly these grounds.  People have claimed that originalists are unsophisticated and unintelligent because they cannot recognize the problems with originalism.  Today, that criticism is muted in the academy, because so many smart people have become originalists.  Today, it is easier to see those criticisms as politically motivated attacks by elites using the rhetorical weapon of criticizing the intelligence of one's opponents.

Perhaps Randall Kennedy is not aware of the originalist renaissance.  Perhaps, if he read the scholarship, he might think differently about Justice Thomas.  But, for me, after reading Kennedy's criticisms of Thomas, it is hard not to lose respect for someone — for Randall Kennedy.

Update: A commentator points to this article by Lincoln Caplan in the Times.  Caplan is supercritical of Thomas and of originalism.  And, in fact, I think there are errors or misleading claims throughout the piece.  But at least Caplan does not cast aspersions on Thomas's intelligence.

Let's just explore one line from Caplan's piece:

But since the Constitution is not “a catalogue of answers,” as the conservative scholar Alexander Bickel explained in 1962, Justice Thomas’s brand of originalism means substituting his personal views of the Constitution for those of earlier courts. 

This is sloppy.  While Bickel later became something of a judicial conservative, when he wrote those lines in 1962, he was not one.  More importantly, originalism is a methodology and, when practiced in good faith, does impose significant constraints.  The claim that originalism — which binds judges to follow the original meaning, does not constrain, but living constitutionalism, which allows judges to make up new provisions, does — is, well, problematic.  

Posted at 2:38 PM