Toobin on Justice Thomas’ Alleged Arrogance

While I was on vacation, Jeffrey Toobin published a hit piece on Clarence Thomas in the New Yorker entitled “Clarence Thomas Has His Own Constitution.” Sadly, the piece is filled with problematic criticisms of the justice.

Happily, the piece starts with a bit of a defense of Thomas against criticisms. While many people criticize Thomas as either a Scalia clone or not hard working, Toobin acknowledges that these charges are not true. In fact, Toobin notes that Thomas is by far the most active writer on the Court, with twice as many opinions as his nearest competitor on the Court. Moreover, many of Thomas’ opinions are solo opinions that were not joined by Scalia.

But that leads Toobin to his criticism of Thomas. Toobin in essence claims that Thomas is an arrogant conservative, placing his own views over those of his fellow justices and the Court generally (although Toobin does not use the term arrogant). As Toobin puts it:

It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.

While I agree with Toobin that Thomas is the justice pursuing originalism most consistently on the Court, I don’t agree with the implicit criticisms that Toobin asserts.

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Dear Colleague’s Letter of the Law

Three armed with pens wooden mannequins guarding office folders. Information security, legal protection or bureaucratic barriers concept

Societal attitudes and mores can and do change dramatically over time, but (aside from Humpty Dumpty) the meaning of commonly understood words does not.

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May’s Ministry Is Another Sign of Trouble for Liberty


Ronald Reagan and Margaret Thatcher together moved the world decisively back toward classical liberal principles in the 1980s. Thatcher was elected earlier than Reagan, and she was a harbinger of what was to come in America and the world. Thus, it is significant today that new Prime Minister of Britain, Theresa May, is moving the Conservative Party decisively in the opposite direction—toward more statism and less liberty.  It is not only in the United States that the party of the right seems to have lost its classical liberal bearings.

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Black Crime Matters

BATON ROUGE, LA - JULY 17: Police officers stand near the scene of where three police officers were killed on July 17, 2016 in Baton Rouge, Louisiana. (Photo by Sean Gardner/Getty Images)

Could a book entitled The War on Cops be more disturbingly prescient? Within just a few weeks of the release of Mac Donald’s work on June 21, the country reeled in horror at the cold-blooded murder of five police officers in Dallas on July 7, followed by the assassination of three more officers in Baton Rouge just ten days later. Americans might be forgiven for taking Mac Donald’s title literally.

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Fishing for an Indictment


Reviewing the 2004 movie Fahrenheit 9/11, Michael Moore’s cinematic attack on George W. Bush and the War on Terror, the late Christopher Hitchens found that its message was all over the place. The movie supposedly revealed the unsavory true motive of the U.S.-led coalition’s invasion of Afghanistan: that the Americans wanted to establish an oil pipeline connecting Afghanistan to the Indian Ocean. It also aired the complaint that not enough troops were sent for the mission to succeed. The only thing unifying its not-very-compatible criticisms was the filmmaker’s disdain for Bush’s politics and his personality.

Dinesh D’Souza’s new movie, Hillary’s America: The Secret History of the Democratic Party, is the Rightwing version of this—a jazzy documentary that throws everything at its target but the kitchen sink. It has two agendas, both of which need work and frequently miss golden opportunities; and they don’t link up logically.

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Reflections on China

I recently visited China for the first time.  Here are some of my impressions.

My main motivation for visiting China was to see a place that was as different from the West as possible, but also had a significant, ancient civilization.  In many ways, China did not disappoint.  Its history, despite the Silk Road, is largely independent of the West.  But it involves millennia of economic and cultural development.

Today, though, China seems a mix – of capitalism and communism.  The flashy new China of Shanghai strikes one as capitalistic.  But the authoritarian state that strictly controls information is communistic.  China also seems a mix of West and East.  The people dress as westerners in much of the country, yet the culture differs from the West in oh so many ways.  There are a range of things that one comes upon daily that seem alien.  For example, interactive norms such as queuing and matters of personal space struck me as quite different in China.

The diversity of the country was striking.  That there are different dialects of Chinese – Mandarin and Cantonese – is of course well known.  But there are also significant differences within these dialects that are very interesting.  For example, I was surprised to learn that the Mandarin spoken in Shanghai is quite different than that spoken in Beijing, and that the Shanghai version is similar to Japanese, allowing Shanghai speakers to understand significant amounts of Japanese (while the Beijing version does not permit this).

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Antonin Scalia, Teaching about the Law

Antonin Scalia at the University Of Chicago Law School. (Credit University of Chicago)

There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.

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Who Understands the European Project?

Nameplate in front of the European Parliament. Brussels, Belgium

No result of an election or referendum in Britain during my lifetime has produced such an excess of rhetoric among those on the losing side as that concerning Brexit. One survey found that nearly half of young people who voted for Britain to remain in Europe either cried or felt close to crying afterwards. This survey suggests either their depth of feeling or their emotional incontinence. I think the latter is probably the more accurate interpretation. Certainly, many young people selectively interviewed by the media said that they felt that their future had been stolen from them by those who voted…

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Regulators, Hands Off the Autopilot!

Tesla provides an autopilot that allows its cars to drive themselves in certain circumstances. Recently, while on autopilot, a Tesla car crashed and killed the driver. The autopilot apparently did not distinguish between a white tractor-trailer and a brightly lit sky in the background of the trailer. The driver is rumored to have been looking at a movie, against the express mandate that a driver using the autopilot keep his hands on the steering wheel.

The National Highway Traffic Safety Administration (NHTSA) is investigating the crash, and the government is now considering how to regulate autopilots. I fear that if regulators aren’t careful, they may kill more people than they save. The basic problem is that first recognized by the great French economist Frederic Bastiat. People too often consider effects that can be seen, but not those that are invisible. Here the focus is likely to be on lives lost by the autopilot, often in fiery crashes that get attention. But lives may be saved as well by its introduction and these lives will receive almost no attention. Statically, the current autopilot itself may save some lives. Dynamically, permitting autopilots may lead to faster improvement in self-driving cars that may save more lives in the future. There are a lot of such lives to be saved. More than 30,000 people die each year in car crashes in the United States, and most such crashes are caused by driver error.

This problem is compounded by the prism though which government bureaucrats view regulation.

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America and the Word: A Conversation with Mark Noll

nollAs the author of numerous influential histories of religion in America, Mark Noll is considered to be the master historian of this subject. In this edition of Liberty Law Talk, Mark Noll joins us to discuss his latest book, In the Beginning Was the Word. Noll describes how the Bible shaped the foundation of public life in early America. He traces this influence directly in the Puritan biblical commonwealths in New England, to the narrow and intense Protestantism unleashed by the First Great Awakening, and the ways both Loyalists and independence-minded colonists used scripture during the Revolutionary War.