Academic

A Few More Thoughts on Justice Thomas's Unfriendly Mohawk Concurrence

By Eric Muller

There has been a bit of discussion in the blawgosphere (and in the comments on this blog) about two things related to the Court's recent opinion in Mohawk Industries:  (1) is there really a tradition that a new Associate Justice gets a unanimous opinion for his or her first?  (2) Did Justice Thomas's decision to concur (in part) in the judgment, to write separately, and to toss around the red-meat vocabulary of judicial activism in his concurrence amount to "total[ ] rude[ness]" (as I put it), a "swipe" at a new colleague (as Adam Liptak put it in the New York Times), or just business as usual?

At Volokh, John Elwood summarizes the data on question 1, and I confess that what I had understood as a solid tradition of unanimous first-time opinions is at best a spotty tradition.  Six of the current nine enjoyed unanimity their first time out; three did not.  I'm no mathematician, but I think that's something like one third of them who wrote for a divided Court.  So while people may think there's such a tradition, Justice Thomas's concurrence made for a less unusual first outing for Sotomayor than I first wrote.

On the second question, though, I'm still comfortable that Thomas's decision to write separately, and to write separately as he did, was unfriendly and unnecessary.  The decision whether (and how) to write separately is an exercise of judgment.  You don't have to write separately in any given case; you choose to.  So each time, you're thinking to yourself, "Do I want to write separately in this case?  Is this case the right case to say what I want to say?  If I don't say it in this case, will I have a chance to say it in another case?  And if I do want to express my disagreement in this case, just how do I want to phrase it?"

Think about your own internal dialogue when you're (for example) deciding whether to speak up at a faculty meeting, whether to vote against a popular faculty candidate, whether to vote against a colleague's tenure or promotion.  And when you do decide to go ahead and speak, or to vote no, think about the care with which you probably choose your words.  I'm not saying any of these decisions is identical to a Justice's decision whether to write separately; I'm saying simply that we are all familiar with the internal dialogue that accompanies a decision about publicly speaking.

If you think about it that way, it's pretty clear, to me at least, that Justice Thomas really didn't have to write at all in Mohawk Industries, and that if he was going to write, he could have chosen words that didn't call up the trope of judicial activism. 

Surely there will be another case that will give Justice Thomas the chance to say what he wants about interlocutory appealability and the collateral order doctrine.  (Maybe it'll even be a case where what he wants to say determines the outcome, rather than just shattering unanimity.)  Even if it isn't strictly necessary to give a new Justice a unanimous debut opinion, it's at least sort of nice to give her that little shot in the arm if you can do it without endorsing a conclusion that you can't bear. 

And surely, when your new colleague has just emerged from a confirmation process in which her opposition settled on the core strategy of deriding her as a "judicial activist," you would think twice before criticizing your new colleague's very first opinion for making "value judgments" and "subordinat[ing]" what a statute says to "what the Court thinks is a good idea."

So did Justice Thomas break a firm Court tradition in Mohawk Industries?  It appears not.  Did he nonetheless behave uncollegially?  I think he did.

Full post as published by The Faculty Lounge on December 10, 2009 (boomark / Mohawk Concurrence&linkurl=http://www.uslaw.com/library/Academic/Thoughts_Justice_Thomass_Unfriendly_Mohawk_Concurrence.php?item=664119' rel=nofollow title='The Faculty Lounge'>email).