Yesterday saw the release of Sonia Sotomayor's first opinion for the Court, as Adam Liptak notes. Traditionally, justices are assigned a straightforward, unanimous case for their first opinion, and this was mostly true. Clarence Thomas, however, refused to join the parts of Sotomayor's opinion that considered the costs and benefits of a rule that would allow orders concerning attorney-client privilege to be appealed before a final ruling. "I would leave," Thomas said, "the value judgments the Court makes in its opinion to the rulemaking process."
While superficially appealing, the problem is that this case (like most similar ones that get to the Supreme Court) concerns ambiguities in the law -- in this case, whether attorney-client privilege is one of a small number of cases eligible for early appeal because they're "collateral" to the merits of a legal action. (The Court unanimously answered "no.") To say that the Court should leave the "values" to Congress begs the question, because it's not clear in these cases what a statute requires. Developing rules in cases like this requires balancing various factors, and it's not inappropriate to consider the consequences of legal rules.
And, of course, there's no reason to believe that Thomas really thinks this is inappropriate, either. Consider this excerpt from Thomas' dissent in the landmark affirmative action case Grutter v. Bollinger:
The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions.
One may agree or disagree with Thomas (or Thomas Sowell, cited by Thomas in support of this claim), but if it's illegitimate for the Court to consider "values," it's not clear how this can be used in justification to displace the state of Michigan's admissions system. (What you don't see from this purported "originalist" in his dissent is any discussion of the history of the 14th Amendment's enactment, for the obvious reason that this wouldn't be favorable to his preferred outcome.) I, myself, don't have a problem with Thomas making these kinds of arguments, but given that Thomas, like every other justice, considers the consequences of various rules when interpreting ambiguous texts, it would be nice if he had spared Sotomayor the false sanctimony.
--Scott Lemieux
