Justice Thomas Jabs Chief Justice Marshall and Justice Holmes in Two Dissents on the Same Day

June 9th, 2016

In his dissent in Dietz v. Bouldin, Justice Thomas rebuked Holmes’s famous repudiation of laws that are only followed because they have been around for a long time.

Justice Holmes famously quipped, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). But old rules often stand the test of time because wisdom underlies them. The common-law rule prohibiting a judge from recalling the jury after it is discharged is one such rule. Even though contemporary jurors are not formally sequestered as they were at common law, they are still subject to significant restrictions designed to prevent undue influ- ence. And in today’s world of cellphones, wireless Inter- net, and 24/7 news coverage, the rationale that undergirds the bright-line rule supplied by the common law is even more relevant: Jurors may easily come across prejudicial information when, after trial, the court lifts their re- strictions on outside information. I would therefore hew to that rule rather than adopt the majority’s malleable multi- factor test for prejudice. I respectfully dissent.

In his dissenting opinion in Williams v. Pennsylvania, Justice Thomas pointed out that Marshall should have recused in Marbury.

Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is Marbury v. Madison, 1 Cranch 137 (1803), in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003).

Justice Thomas calls out two of the most overrated Justices of all time. Well done.