In this Wall Street Journal column, Jan Crawford Greenburg focuses on one of the findings of her new book on the Supreme Court's recent history: that Clarence Thomas is not just a "lackey" of Antonin Scalia's.
In my view, this is actually one of Greenburg's less original revelations. Other writers, such as Thomas biographer Andrew Peyton Thomas (no relation to the Justice), and law professor Scott Gerber have already documented the considerable divergences between Thomas' approach to constitutional law and Scalia's.
Moreover, the two justices' published opinions reveal important differences even aside from the inside sources tapped by Greenburg, Peyton Thomas, and Gerber. They show that Scalia and Thomas diverged on a number of major constitutional issues including censorship of on-line pornography, federalism (especially in Gonzales v. Raich), the line-item veto, the rights of Guantanamo detainees (in Hamdi v. Rumsfeld), and the Public Use Clause (in Kelo v. City of New London, where both voted the same way, but Thomas wrote a separate dissent advocating a much narrower definition of "public use" than that endorsed in the principal dissent by Justice O'Connor which Scalia signed on to). Of course, Scalia and Thomas agree on many more issues than they disagree on. But that is not surprising for two generally conservative justices. The Court's liberal justices agree among themselves with roughly equal frequency.
The systematic disagreements between Thomas and Scalia, to my mind, stem from three principle sources: Thomas' greater commitment to originalism in cases where the original meaning clashes with precedent or modern policy preferences (evident in the federalism cases, especially Raich); Thomas' libertarian streak, which sometimes clashes with Scalia's social conservatism (evident in the First Amendment cases where they disagree; and perhaps also in Kelo); and Thomas' commitment to a broader view of executive power than Scalia is willing to support (as in the Guantanamo cases, where Thomas is the only justice to fully endorse the Bush Administration's sweeping claims of wartime executive power).
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Excuse me while I gag.
See Hamdi v. Rumsfeld, 524 US 507 (2004) (Thomas, J., making a fool of himself).
I think by "libertarian streak" Ilya means to say that Thomas is less sympathetic to government claims to impose "morality" than scalia is. I think this is probably true, although my evidence may be anecdotal. I remember one case - I think it's a pornography case - where Thomas wrote emphatically that a purely paternilistic interest cannot even satisfy rational basis review.
Excuse me while I gag.
To say that someone has a libertarian streak is not to say that they reach libertarian conclusions in every case. In the vast majority of the other cases where Thomas has split with Scalia (Raich, Ashcroft v. Aclu, Kelo, etc.), Thomas has gone with the more libertarian position.
C'mon now. Taking O'Connor's use of a civil litigation balancing test for due process (because detaining someone in a criminal matter for years is just like a welfare recipient requesting a hearing) and then proclaiming that when the government says it has an interest, well, that's good enough for the court...
There's comedy.
There's high comedy.
Then there's the Thomas opinion in Hamdi. Libertarian? I didn't know libertarian meant trusting the government to keep US citizens in prison just because, you know, it says it has a good reason. And stuff. Move along, nothing to see here!
Greenburg also proffers anecdotal evidence about Justice Thomas alienating Justice O'Connor, but that's another story.
I don't agree with Thomas' opinion in Hamdi. But claims that it's the worst opinion by a justice since Korematsu are, I think, seriously overrwrought. It has far better basis in both text and original meaning than a large number of recent Supreme Court decisions that I can think of. For example, it has stronger justification than the holding that virtually anything can be regulated as "interstate commerce" (Raich); that government can ban campaign advertisements by interest groups within 60 days of an election (McConnell v. FEC); that the 11th Amendment bars Congress from allowing people to sue their own state governments (even though the text of the amendment says otherwise); that abortion is a constitutional right (Roe, Casey); and quite a few others.
I also think it's fallacious to claim that the opinion, had it become the law, would instantiate some kind of presidentially controlled police state. Thomas' opinion specifically states that the President's power to detain is not unlimited:
In my view, Thomas' position is far too deferential to Presidential "factual" determinations in cases where US citizens captured in the US are detained. But that is not the same thing as saying that he justified essentially unlimited executive power.
That was Thomas' originalism too. Since the founders believed it was legal to execute spies caught in plain clothes (out of enemy uniform) they would have no problem with a lesser penalty.
If you want to fight for the other side, dress up. Don't wear that casual attire that so many air travelers wear these days. It will only get you into trouble.
I think you miss the brilliance of Thomas' Hamdi decision.
In quick lay terms, if the executive decides that a US Citizen should be put in the pokey forevah (and that's a mighty long time), well, that's okay. Because (and this is great...)
1. Uh, Youngstown and twilights and stuff. A judiciary is best when it doesn't function by getting involved in issues like, oh, whether or not US citizens need to be charged with crimes.
2. If we use a balancing test (O'Connor), well, the President is allowed to put his finger on the scale.
That's it. None of this fancy-Scalia footwork (you know, charge the guy). Because after all, our Founding Fathers fought to make sure that an unchecked executive could arbitrarily do whatever he wanted to, like imprison people, right?
To imagine that someone of his limited intellectual abilities has crafted a theory of constitutional interpretation is just laughable.
He would make a good undersecretary of transportation or something.
In regards to your post at 6:58 pm, I would add Nguyen v. US, and Harris But see, e.g. Neder, Pasquantino, Almandez-Torres (OK, Thomas changed his mind), Bunkley v. Florida and Hamdi (admittedly an exception per your third category. In sum, It appears to me that Scalia and Thomas are split about evenly as far as which one is more libertarian.
As far as Greenburg's argument, there can be no doubt that it was because of Thomas that Scalia changed his views on what the Cruel and Unusual Punishment and Double Jeopardy clauses protect.
UncleJustice Thomas is an originalist. Just ask President Gore.BTW, r78, do you have an examples of Thomas's "middle level" thinking? Because I'd hate to think you are just a "middle level" thinker.
I am curious, what is the non-originalist position there? Let the various Florida counties keep inventing votes until the person you like is president?
?
Seven members of the Supreme Court voted to stop the recounts. It was the Florida state supreme court (all of whom were appointed by Democrats although that never gets mentioned by people who can't help mentioning that five Supreme Court justices were appointed by Republicans) that wanted to disregard the law as passed by the state legislature.
While the books linked to in this post by Gerber and Thomas were published in 2002, Greenburg wrote "THOMAS AND SCALIA: 2 JUSTICES, 2 VIEWPOINTS THEIR RECORDS SHOW CONSERVATIVES NOT ALWAYS IN LOCKSTEP" in the June 7, 2000 edition of the Tribune.
It's available in the Tribune paid archives or on Lexis, but here's the abstract:
"The idea that [Antonin Scalia] and [Clarence Thomas] are completely out of control and cutting a swath through civil liberties and civil rights, with no concern for the individual, is crazy," said Roy Englert Jr., a frequent advocate before the Supreme Court who argued a case over federal court jurisdiction several years ago in which Scalia and [Thomas Paine] came down on opposite sides."
She's been way, way out front on this.
Well gee, all the president has to do is make a "factual determination" (and he doesn't need to provide any basis for his "factual determination" if the "factual determination" is based on classified information) that someone is an enemy combatant. Then it is just fine with Thomas.
do you have an examples of Thomas's "middle level" thinking? Because I'd hate to think you are just a "middle level" thinker.
You're right, calling the above "middle level" thinking would be an insult to "middle level" thinkers every where.
This is discussed in the book. According to JCG, the originalist position you discussed was going to be the ruling. But, Breyer got into Kennedy's head about equal protection, and in order to insure that Kennedy voted to overturn, the other agreed to change the holding to equal protection grounds.
Look, consider it like this. Suppose that you buy the article II argument, and that the only viable remedy is to shut down the recount. Once it became clear that Kennedy and O'Connor weren't willing to sign on to the Article II argument, what can you do? Stand on principle? Talk about fiddling while Rome burns! The four liberals bury whatever minor differences exist between their positions, and get behind Justice Stevens' opinion, which means that the court not only decides the case the wrong way, but does so splintered 4-3-2.
On the other hand, while I find it a little hard to believe that Scalia and Thomas really buy the EP argument, Scalia's defended it publicly, both explicitly and implicitly, so maybe I'm wrong.