OA244: Clarence Thomas vs. Thurgood Marshall

Today’s episode features a little more about Corey Robin, including the argument addressed on the show that criticisms of Clarence Thomas’s competence are a racist echo of similar claims made against Thurgood Marshall.  Find out why Andrew made the mistake he did in Episode 242, and also why Andrew still stands behind his answer to that question.

We begin with Robin, winding our way from his blog posts to the jurisprudence of two of Andrew’s heroes, Laurence Tribe and Ronald Dworkin!  Ultimately, you’ll learn why Andrew continues to defend the proposition that attacks on Thomas’s competence are not inherently racist.

After that, it’s time for some behind-the-scenes news about Attorney General nominee William Barr just in time for his confirmation hearings.  What company does he keep when it comes to interpreting the Founding Fathers?  Listen and find out!  (Hint:  this isn’t good.)

Finally, it’s time for the answer to Thomas Takes The Bar Exam #108 regarding real property.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!


None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We first discussed Robin in Episode 242 as part of a listener question.  You can click here to read his Tweet criticizing us for engaging in “tribalism” and playing identity politics.
  2. We discuss two Robin blog posts in depth:  (a) “Everything is in the Hands of Heaven Except the Fear of Heaven”, and (b) “The Scandal of Democracy”
  3. It was, in fact, Elena Kagan who said “we’re all textualists now” in 2015.
  4. Click here to check out Tribe’s 2008 book, The Invisible Constitution, which openly contests originalism (and directly engages Scalia in particular).
  5. You should also check out the Ronald Dworkin speech that was turned into an article in the Fordham Law Review.
  6. This is the 2001 Keith Whittington law review article that credits Robin with an assist.  This is Whittington’s page at the Federalist Society.
  7. We engage with this tweet from Robin listing four supposed examples of intellectual laziness leveled against Thurgood Marshall.
  8. Some Thurgood Marshall links:  (a) his confirmation as reported by the New York Times; and (b) this lovely retrospective on Thomas’s career penned by Juan Williams for the Washington Post.
  9. Finally, you can read some more stuff on Clarence Thomas:  (a) the 2014 rates of agreement among Supreme Court justices; and (b) this anecdote reported by attorney Matt Howell.
  10. If you have HeinOnline, you can read the Mark Tushnet law review article in the Georgetown Law Review we discuss on the show.  (Otherwise, you’re stuck reading the first page only.)

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