Bench Memos

Dimwits and Double Standards

Last week, in a post on the contretemps of the small-minded that erupted at the University of Georgia when Justice Clarence Thomas agreed to be the commencement speaker there this spring, I referred to Thomas’s “career of distinguished public service.”  This brought an e-mail from a reader who identified himself only as “Neal,” arguing that Thomas is the Court’s least productive justice, as measured in opinions written–and so, says “Neal,” he is a “quota justice” who was appointed because he is black and didn’t deserve to be on the Court.  This sort of canard may be widespread, for all I know, and in any event is emblematic of the kind of disdain directed only at Justice Thomas, and only because he is not the left’s preferred version of a black man.  So I’ll rebut it here rather than in an e-mail to my contemptuous correspondent.

“Neal” refined his argument in a second e-mail to say that through 1999, Thomas had written the fewest opinions on the Court “by a good margin,” and that he only became and remained truly productive thereafter.  Well, let’s see.  Begin by leaving out Thomas’s “freshman” term, since he joined the Court after the October 1991 term began, and since most justices are relatively underproductive when they first begin.  According to the Lexis database, in the seven October terms that began from 1992 to 1998 (i.e., through June 1999), Thomas wrote 156 opinions (of all kinds: for the Court, concurring, and dissenting).  In the subsequent seven October terms, from 1999 to 2005 (through June 2006), Thomas’s output increased to a total of 181 opinions of all kinds, an increase of 16% in a period of the same duration. 

Looks like “Neal” has a point, right?  After all, in the terms 1992 to 1998, Justice Scalia was far more “productive,” being responsible for 218 opinions.  But wait.  In the subsequent period of the terms 1999 to 2005, Scalia’s production of opinions declined to 192 total opinions, a drop of 12% that brought him and Thomas very close together on this measure.  So should Scalia be excoriated for becoming lazier in the later period?

Let’s not stop.  Three other justices served for the entirety of both periods under review here.  How did they do?  In the 1992-98 period, Justice Stevens authored 297 opinions, but in the 1999-2005 period this fell to 229 opinions, a drop of 23%.  Justice Kennedy’s productivity rose very slightly, from 129 opinions in the 1992-98 period to 134 in the 1999-2005 period (up 4.7%).  And Justice Souter produced 151 opinions in the 1992-98 period, but only 132 in the 1999-2005 period (down 12.6%). 

Notice anything about this recitation of (mostly meaningless) “productivity” figures?  Justice Kennedy was considerably less productive than Justice Thomas in the earlier period, and remained so in the later one.  Justice Souter was slightly less productive than Thomas in the earlier period, and became markedly less so in the later one.  (So what was that again about Thomas producing the fewest opinions before 1999 “by a good margin”?)  If Justice Thomas is to be judged an unworthy appointee for the Supreme Court because his contributions have been so “slight,” what are we to make of two justices who have never outperformed him, one of whom has actually declined in productivity over time?

In truth, though, what are we to make of these numbers as indicia of how hard, how effectively, or how influentially the individual justices work?  Not much, actually.  But what can we say about people who pick out Justice Thomas’s “productivity” figures in isolation from his colleagues’ performance in order to market the canard that he was a “quota” appointee?  That they are dimwits using double standards.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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