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Justice Thomas, Pwnd

May 7, 2009
By .
Geekery, Law

Earlier this week, in the case Carlsbad Technology, Inc. v. HIF Bio, Inc., (07-1437.pdf) the Supreme Court decided something boring about the right to appeal district court remand orders of state law claims in a removed case where all federal claims had been dismissed and blah blah blah… not the point of this post. (Though, if I may make one point about the case itself, SCOTUS has cut back its workload to roughly 75 cases a year and they wasted one slot to hold "you may file an appeal that you can not possibly win" in this case.)

The point of this post is that Justice Thomas wrote the majority opinion and held that the case was clearly covered by the 1976 case Thermtron Products, Inc. v. Hermansdorfer and its progeny. As is typical of Thomas and his precedent-hatin' ways, he included a footnote in which he said "We do not revisit today whether Thermtron was correctly decided. Neither the brief for petitioner nor the brief for respondents explicitly asked the Court to do so here…" Unremarkable so far, until you get to the concurrences.

Scalia is on board with what Thomas implies and is ready to reconsider Thermtron. Breyer is vexed by the inconsistent jurisprudence and wants Congress to wake up and amend the law to bring some order to the statute. And Stevens decides to make fun of Thomas:

If we were writing on a clean slate, I would adhere to the statute’s text. But … stare decisis compels the conclusion that the District Court’s remand order is reviewable notwithstanding §1447(d)’s unambiguous contrary command. The Court’s adherence to precedent in this case represents a welcome departure from its some-times single-minded focus on literal text. Accordingly, I join the Court’s opinion.

Take that, Clarence!

Last 5 posts by Charles

7 Comments
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7 Comments

  1. Patrick  •  May 7, 2009 @12:42 pm

    Mmmm, just a barb. Hardly pwnership.

    Agree or disagree with his philosophy and method, Thomas is fairly principled in his unwillingness to address questions not presented to the Court. See FCC v. Fox for instance.

    I have to admit that, intellectually, I'm far more comfortable with Thomas's method than I am with that of a Souter. It's predictable, which is just what I want in advising clients about how a judge might rule.

  2. Charles  •  May 7, 2009 @1:16 pm

    Pwnd in the context of Supreme Court opinions, I think. And I've seen far less labeled as pwnd. The bar is pretty low on the internet too. For instance, I just pwnd you. Because I said so.

    You can be sure that Thomas won't decide a case on a ground not litigated, which is nice if you are involved in litigation against an opponent that doesn't make all available arguments. Most of the time, however, you aren't in litigation at all and are merely trying to act according to the law as established in previously decided cases. For all of those situations, a court of Thomases would be nerve-wracking.

  3. Patrick  •  May 7, 2009 @1:22 pm

    Regarding pwnd, I know it when I see it. And this ain't it.

    Admitted that Thomas would have been a far better Justice, methodologically, at the dawn of the Republic or in the 1940s, except for one character flaw which would have disqualified him from the bench.

  4. Charles  •  May 7, 2009 @1:45 pm

    If not pwnd, how about bench-slapped?

  5. Patrick  •  May 7, 2009 @1:50 pm

    I concur.

  6. Adam  •  May 8, 2009 @2:57 pm

    That's not pwnage at all. It doesn't even make sense in the context of the case. In fact, Justice Scalia responded to Justice Stevens in his concurrence. He said, "If this muddle represents a welcome departure from the literal text, (citing Stevens), the world is mad." Now that's pwned.

  7. JaMarcus Russell  •  May 10, 2009 @9:30 am

    My favorite in this ancient genre of Stevens-Thomas sniping comes from West Virginia Hospitals v. Casey (1991):

    "On those occasions, however, when the Court has put on its thick grammarian's spectacles and ignored the available evidence of congressional purpose and the teaching of prior cases construing a statute, the congressional response has been [to overturn the Court] [collecting cases and responsive statutes]."