Michael C. Dorf

Clarence Thomas, Sonia Sotomayor, and the Noble Lie

By MICHAEL C. DORF
Wednesday, February 10, 2010

Last week, Supreme Court Justice Clarence Thomas answered a wide range of student questions during his visit to the University of Florida Law School. Americans whose primary view of Justice Thomas comes from his surreal confirmation hearing nearly two decades ago, or from media coverage that tends to portray him as simply a yes-man for Justice Scalia, would do well to watch the recording of his speech.

Whereas Justice Thomas has in the past sometimes come across as angry or bitter—even as recently as in some of the discussion of his confirmation hearing in his otherwise-insightful 2007 book, My Grandfather's Son—in the University of Florida discussion he is at ease, gracious, self-deprecating, and witty. As close readers of his work on the Court know, Justice Thomas has a distinct set of views about race. They are not my views, nor are they the views of most African Americans, but neither are they simply the borrowed cant of white conservatives: Thomas plausibly traces the mix of self-help and color-blindness he endorses to Frederick Douglas, Booker T. Washington, and, in some measure, W.E.B. DuBois. Clarence Thomas is an original thinker whose ideas deserve to be taken seriously.

Reflecting on public criticism of the Court—especially after highly controversial and politically-freighted decisions like Bush v. Gore or last month's Citizens United v. FEC—Justice Thomas warned in his opening remarks that critics should be careful not to ascribe "ulterior motives" to judges with whom they disagree. "There's a zone within which to criticize," he said, suggesting that attacks on the integrity of the decision-making process itself risk "undermining" the Court, which, as an "institution should be respected and preserved."

In this column, I shall first examine the factual premises of Justice Thomas's admonition. I will then turn to an odd feature of the public understanding of the Court's role that emerged last summer during the confirmation hearings of Justice Sonia Sotomayor: Continued respect for the Court may require a kind of willful blindness to the way it actually functions.

What Divides the JusticesDifferences in Approach or in Values?

Political scientists who study the Supreme Court have long known what lawyers are constantly surprised to discover: That in the sorts of cases that reach the high court—that is, cases in which plausible arguments can be made for a variety of outcomes—the justices' general ideological leanings are highly determinative of the results. Conservative justices typically rule against abortion rights, against gay rights, against affirmative action, for the death penalty, for the rights of business and corporate interests, and for states' rights; liberal justices reverse those tendencies; and moderates fall in between.

In his University of Florida speech, Justice Thomas acknowledged—and, indeed, went so far as to celebrate—the fact that different judges decide cases differently. Different approaches, he said, "strengthen and inform our legal system." Accordingly, Justice Thomas went on, no one should be surprised that there will be disagreements about how to decide cases.

Yet the pattern of results observed by those who study the Court shows more than simply a difference of approach or methodology. Here, for instance, is a difference of methodology: Justice Thomas believes that the original understanding should play a more substantial role in interpreting the Constitution than does Justice Ginsburg (whom he nonetheless said "is a fabulous judge"). But the differences observed by political science are ideological differences, rather than methodological differences.

Consider the 2008 decision in District of Columbia v. Heller. There, a 5-4 Court held that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. All nine justices thought that the result for which they voted was based on the 1791 meaning of the Second Amendment, so the difference between the majority and the dissent was not methodological. Instead, it was political: The most conservative justices voted against gun control; the most liberal justices voted for it.

That pattern can be found in case after case. To be sure, there are exceptions. For example, Justices Scalia and Thomas sometimes vote to uphold constitutional claims by criminal defendants in circumstances in which, one suspects, their ideological views would incline them more towards approving the actions of the police. In such cases, they are putting their jurisprudential views ahead of their ideological views.

Still, the teaching of political science is not that the justices only ever care about ideology, but rather that ideology plays a large role in the work of the Court. Justice Thomas's acknowledgment of differences in "approach" does not come to grips with what is also, perhaps primarily, a difference of "values."

In What Sense Are Judges Political?

Should we therefore conclude that judges have "ulterior motives"? Not necessarily. Research in psychology confirms that people with different perspectives will reach different judgments, even if all of them are acting in good faith. In a case like Heller, all nine justices may well have sincerely thought that the original understanding favored their interpretation of the Second Amendment, but that is because their views about gun control subconsciously influenced their reading of the historical materials.

The same sort of subconscious influence could even be at work in cases in which judges appear to go beyond their ideological preferences to vote based on their partisan political preferences. In cases such as Bush v. Gore and Citizens United, we can see the conservative justices casting votes that favor Republicans, while liberal justices cast votes that favor Democrats. Here too, we need not think that any justice consciously sought to favor a particular candidate or party in order to conclude, nonetheless, that the awareness of who would benefit could have played a substantial role in how each of the justices saw the case.

But if this picture of the Court's true workings enables the justices to escape charges of consciously violating their oath to render impartial justice, it nonetheless remains troubling. After all, Justice Thomas only defended a modest conception of judicial diversity. In his view—which I share—diverse methodologies enrich the Court's overall jurisprudence. He did not defend either (subconsciously) partisan judging or judging that is (subconsciously or consciously) based on subjective value disagreements.

On the contrary, in a memorable phrase during his confirmation hearing, then-Judge Thomas said that a judge should be "stripped down like a runner" and should "shed the baggage of ideology." It is possible that in nearly two decades on the Court, Justice Thomas has changed his views on this issue, but I heard his remarks at the University of Florida differently: He was embracing methodological diversity, rather than ideological diversity—a position consistent with the view that ideology as such has no proper place in judging.

The Dishonest Public Discourse About the Court

Justice Thomas's view that judges and justices do not base their decisions on their ideological preferences is probably best understood as more of an aspiration than a description of how courts actually function. A somewhat different view—which embraces values diversity as well as methodological diversity (though not partisanship)—was espoused by then-Judge Sotomayor in a 2001 speech. She said: "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

Unfortunately, Sotomayor and her White House handlers concluded that in order to win confirmation, she had to back off of that honest assessment of her judicial role. As I explained in a column last summer, under questioning by skeptical Republican Senators, Sotomayor embraced a hyper-formalism in which judges are seen as nothing more than law-applying machines, operating by a kind of algorithm that converts text, original understanding, and precedent into determinate legal outcomes. Her answers barely left any room even for an appreciation of the methodological diversity that Justice Thomas acknowledged and endorsed last week.

Of course, Justice Sotomayor was not the main culprit in her unilluminating confirmation hearing. She was merely following a script that has by now become familiar: Senators ask each nominee about his or her "judicial philosophy" in the hope of learning the nominee's likely votes on key issues about which their constituents care—such as abortion, gun control, and same-sex marriage. Meanwhile, nominees dodge the question by denying that they even have a judicial philosophy.

If the inaccurate hyper-formalist picture of judging were confined to Supreme Court confirmation hearings, we could discount the entire spectacle. Yet this view also infects our broader public discourse about the courts. Whenever a politician says that judges should "apply the law," rather than "make the law," he tacitly endorses the judges-as-machines notion. Why?

One possibility is that the politicians who make such statements simply do not know any better. The formalist view that courts can simply "apply" the law without reference to their values is widespread among people who have not attended law school, and thus have not been exposed to the inevitable gaps and ambiguities in the law.

Alternatively, we can imagine that some politicians (and judges) who decry "judicial legislation" do so to further particular substantive policy goals. By denouncing those with whom they disagree as unprincipled, they advance a political agenda while at the same time disclaiming it.

Finally, perhaps some sophisticated judges and politicians may speak the language of formalism as a kind of "noble lie." In The Republic, Plato provocatively suggests that to keep the lower classes (including slaves) from revolting against their rulers, it would be useful to brainwash the public into thinking that the social order is ordained by the gods. The lie is, in Plato's view, noble, because it preserves civil peace, but it is a lie nonetheless.

So too with formalism. Perhaps the rule of law depends on the public's belief that the law is substantially more determinate than it in fact is. If so, then Supreme Court confirmation hearings and similar events are occasions for affirmation of the noble lie that formal legal materials, and not human, fallible judges, decide hard cases.

In the end, however, the very notion of a noble lie sits uncomfortably with constitutional democracy. Plato, after all, was no democrat. Our system of government is, or at least should be, premised on the idea that the people can handle the truth.

Thus, in acknowledging—even if only modestly and tentatively—that diversity of opinion on the Supreme Court is healthy, Justice Thomas has performed a valuable service.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available.  He blogs at dorfonlaw.org.

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