The Volokh Conspiracy

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No Joan Biskupic, Justice Thomas Did Not Take A "Surprising, Public Jab" At Chief Justice Roberts

Justice Thomas waxed nostalgically about the Rehnquist Court. He did not blame Roberts for the change.


Last week, Justice Thomas spoke at a conference in Dallas. I transcribed his remarks in this post. At various points, Justice Thomas waxed nostalgically about the Rehnquist Court. And he observed that the Court has changed over the past two decades.

Well, I'm just worried about keeping it at the court now. This is not the court of that era. I sat with Ruth Ginsburg for almost 30 years. And she was actually an easy colleague for me. You knew where she was and she was a nice person to deal with Sandra Day O'Connor you can say the same thing, David Souter, I can go on down the list. Nino was, he could be agitated but then he forgot he was agitated. But it was it was a the court that was together 11 years was a fabulous court. It was one you look forward to being a part of. . . .

Later, Thomas said the old Rehnquist Court was different than the current Roberts Court.

And we never had that before. We actually trusted–it was we may have been a dysfunctional family. But we were a family. And we loved it. I mean, you trusted each other. You laughed together. You went to lunch together every day. And I can only hope you can keep it. So it's what was it Ben Franklin that said, we gave you a republic if you can keep it. And I think that you have a court and you hope you can keep it.

It was abundantly clear that Thomas was not making any point about Chief Justice Roberts. Thomas was not saying that Roberts was the cause of this change in the Court. Thomas was not expressing any criticism of Roberts at all.

Joan Biskupic of CNN, however, saw the event very differently. She writes:

Last week at a Dallas conference, Thomas took a surprising, public jab at Roberts. Thomas has long touted the good relations inside the court and avoided public criticism of colleagues. He might not always have embraced his colleagues, but he avoided letting any enmity slip. . . . Thomas' blunt remarks suggest new antagonism toward Roberts and added to the uncertainty regarding the ultimate ruling in Dobbs v. Jackson Women's Health Organization, expected by the end of June.

There was no "surprising, public jab." There is no "enmity." There is no "antagonism."

Here, Biskupic pitches Roberts's appointment as the inflection point:

Thomas last week recalled the court atmosphere before 2005, when Roberts joined, and said, "We actually trusted each other. We may have been a dysfunctional family, but we were a family, and we loved it."

From 1994 through 2005, there was a long-serving natural Court. Justice Thomas was praising that natural Court. Starting in 2005, there was rapid turnover. Roberts for Rehnquist. Alito for O'Connor. A few years later, Sotomayor for Souter, and Kagan for Stevens. Then before you know it, Scalia died, and we got Gorsuch, Kavanaugh, and Barrett in rapid succession. Thomas was talking about turnover. He was not laying blame at the Chief.

Yet, Biskupic makes the charge:

But Thomas' sudden aim at Roberts' leadership is new. In the Dallas appearance, his message to the chief justice came down to: The court was better before you arrived.

No Thomas did not send that message--expressly or implicitly!

Biskupic continues:

Thomas' remarks pulled back the curtain on the tensions inside. Perhaps they revealed long simmering sentiment for a chief who has wrenched relations over the years. Or perhaps they reflected the internal recriminations over who might be responsible for disclosing the draft opinion. Or perhaps they indicate that the apparent five-justice majority to overturn Roe is not so secure.

There was a time when Biskupic could pull back curtains with leaked information. She apparently no longer has those sources, or if she does, she doesn't write about them. Instead, she relies on idle speculation. Perhaps this or perhaps that. This sort of gossip is fine for David Lat and me, but I expect more from the most trusted named in news.