Waiting for Stras

The Court is busy cycling through the criminal cases that were argued before Justice Stras joined the Court.  He has yet to cast a vote — a public one, anyway — in a criminal case.  We are frozen in a moment in which Justice Stras is still a blank slate, a mystery.  And who can resist a mystery?

A Foregone Conclusion?

There was an unmistakable slant to the media coverage that attended Stras’s appointment to the Court in May.  Most commentators seemed to believe that they already knew who he was.  They predicted that his addition would continue or even hasten the Court’s momentum to the right.  These prognostications appeared to have less to do with Stras’s scholarly work than with his resume.

Following law school, Stras clerked for two federal appellate judges.  The first was Judge Melvin Brunetti of the United States Court of Appeals for the Ninth Circuit, accorded (by his former law clerks, not necessarily an impartial constituency) as a conservative but non-ideological jurist.  Following that, Stras clerked for Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit.  Judge Luttig made the White House’s SCOTUS short list twice during the presidency of George W. Bush.  He sat on the Fourth Circuit bench for fifteen years.  In a recent New York Times article about the ideological polarization of the SCOTUS law clerk corp, Adam Liptak writes that Judge Luttig was widely-known as a “feeder judge.”  During his tenure on the federal bench, forty of his law clerks graduated to clerkships at the United States Supreme Court; thirty-three of the forty worked for either Justices Thomas or Scalia.  One of them was David Stras.

A Complicated Mentor

Justice Thomas is, famously, conservative – probably the most conservative justice, pronounces Jeffrey Toobin, “since the Four Horsemen, FDR’s nemeses, retired during the New Deal.”  Justice Thomas has stated publicly that he has no interest in hiring law clerks who do not share his ideology.  “I won’t hire clerks who have profound disagreements with me,” he told an audience at the National Center for Policy Analysis, a conservative think tank.  “It’s like trying to train a pig.  It wastes your time and aggravates the pig.”

David Stras clerked for Justice Thomas during the 2002-03 term.  I found that information here, in a Wikipedia compendium of SCOTUS law clerks.  I did not find that information, at least not explicitly, here, on the Minnesota Supreme Court’s own official bio of Justice Stras.  It seems a curious omission.  Isn’t it a matter of some interest which cases Justice Stras may have worked on during his year at the high court?  Is the point of omitting the dates to discourage people from rooting around in SCOTUS’s cases from that period?

It was, in any event, a noteworthy term for Justice Thomas.  In Lawrence v. Texas, the Court voted 6-3 to invalidate Texas’ ban on same-sex sodomy.  Justice Thomas joined Justices Scalia and Rehnquist in dissent.  Also during the 2002-03 term, the Court decided a pair of cases involving the use of racial preferences in admissions at the University of Michigan.  The Court upheld the law school’s individually focused policy in Grutter v. Bollinger, and it struck down the undergraduate college’s strictly numerical policy in Gratz v. Bollinger.  Justice Thomas voted against the affirmative action plans in both cases.  His Grutter dissent is famous primarily because of the Frederick Douglass quotation with which Justice Thomas elects to sum up his cause:

” ‘The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning.  Do nothing with us!  Your doing with us has already played the mischief with us. Do nothing with us!  If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also.  All I ask is, give him a chance to stand on his own legs!  Let him alone! ‘ ”

Justice Thomas’s Grutter dissent continues, peevishly, “The majority upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti.”

I prefer to give Justice Stras the benefit of the doubt, and so choose to imagine him trying to dissuade Justice Thomas from the unfortunate “cognoscenti.”  In any event, the new man on the job in our state is Justice Stras, not Justice Thomas.  Is it fair to base predictions about an individual’s leanings on the views of his prior employers?

His Own Odd Sensibility

Justice Stras’s own academic writings are amiably esoteric and technocratic.  Are senior judges unconstitutional?  Should Supreme Court justices ride circuit once again?  Is there an algorithm that explains plurality decision making?  Was Pierce Butler anything other than entirely forgettable?  As a law professor, Stras appeared to be primarily interested in federal courts, both as institutional and economic organisms.  Given his scholarly preoccupations, it is something of a surprise that he is drawn to service in the state court system, where even at the supreme court level, judges cannot avoid the commonplace grind of private litigation.  In any event, Stras’s scholarship focuses on institutions, rather than on discrete legal concepts or developments.  It does not clearly augur who he will become as a justice of the Minnesota Supreme Court.

Of course Justice Stras is going to be conservative.  It is possible, however, that his conservatism will bisect things at oblique angles and challenge us with new ways of looking.

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