Brothers in Law?
by Will Baude
tnr.com
Critics of the Supreme Court frequently paint Justices Clarence Thomas and Antonin Scalia as twin horsemen of a conservative apocalypse. Last July, The New York Times quoted Duke law professor Walter Dellinger as saying, "Scalia and Thomas represent the Moral Majority strain." Michael Kramer of the New York Daily News wrote that the two have "rarely met a civil liberty worth preserving." Thomas is frequently portrayed as the intellectual student of Scalia, whose flashier writing generally draws greater attention. In September a cartoonist for the Palm Beach Post depicted Thomas as a hand-puppet held by Scalia. Such criticisms often go hand-in-hand with the accusation that Thomas lacks serious ideas of his own. A biting column by Maureen Dowd last June in The New York Times accused Thomas of eschewing "clerks and legal footnotes" and instead relying "on his id."
Given the widely held perception of Thomas as an unserious justice who leans on Scalia for intellectual guidance, it probably surprised many Court watchers to see the justices parting ways on two key decisions during the last week--yesterday's decision striking down the Child Online Protection Act and Monday's decision in Hamdi v. Rumsfeld. But it shouldn't have come as a surprise at all. That's because the widely held myths about Thomas are largely false: He is neither a knee-jerk conservative nor Scalia's yes-man. Rather, he has carved out a distinct jurisprudence as an advocate of textualism, a style of reading laws and constitutions in which words are taken at face value rather than interpreted in historical context or mitigated by practical considerations. There are notable ideological differences between Scalia and Thomas. Scalia, for instance, takes a narrower view of free speech and is less willing to reverse previous Court decisions, even when it is clear that they departed from the original intentions of the Constitution's framers. Thomas, by contrast, sees himself as a staunch defender of the classically liberal vision of the country's founders.
In Hamdi, Scalia and Thomas could not have been further apart. Scalia repeatedly invoked William Blackstone, the eighteenth-century expert on common law, to argue that Yaser Hamdi's detention was unlawful, and that the plurality opinion had not gone far enough in vindicating his rights. Thomas also disagreed with the plurality, but invoked the Federalist Papers to argue that it was vital to national security that the president's military decisions be free from judicial interference. Both justices were trying to resolve the case by turning to historical commentaries, and the traditions and practices of this country during previous wars; but their examinations led them to opposite conclusions: Thomas would have given nearly unchecked power to the president, while Scalia would have forced the government to bring Hamdi to trial.
While liberals may deride Thomas's role in Hamdi, his departures from Scalia often take him in the opposite direction. In Ashcroft v. ACLU, decided yesterday, Thomas joined the majority opinion holding that a congressional act regulating Internet pornography was "probably unconstitutional"; Scalia, meanwhile, wrote the strongest dissent, arguing that the law was not only a valid restriction, but could have gone so far as to ban the commercial pornography at issue altogether.
Scalia and Thomas had plenty of other disagreements this term. In a February decision in Olympic Airways v. Husain, Thomas delivered the opinion of the Court over a dissent written by Scalia and joined by O'Connor. At issue was whether an airplane passenger's death from secondhand smoke was an "accident" under the Warsaw Convention, a treaty that deals with international liability. Thomas held that it was, despite contrary interpretations by foreign courts. In his dissent, Scalia, as always more inclined than Thomas to defer to established precedent, challenged him for failing "to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us." They also disagreed about the Foreign Sovereign Immunities Act in Republic of Austria v. Altmann, the Bankruptcy Code in Till v. SCS Credit Corp, Indian tribal sovereignty in U.S. v. Lara, and the Clayton Antitrust Act in Verizon v. Trinko.
Even when Thomas does vote with Scalia, he often voices his own caveats and concerns, especially on hot-button issues where Scalia's reactionary rhetoric grows heated. In Locke v. Davey--which permitted the state of Washington to exclude theology students from its honors scholarship program--Scalia warned that the majority's decision might herald "repression" of religion, while Thomas wrote separately to point out that restrictions on the study of theology were not always anti-religious. Last June, when Scalia penned his famously blistering dissent in the Texas sodomy case, Lawrence v. Texas, Thomas added a short and measured dissent calling the Texas law "uncommonly silly" and adding, "If I were a member of the Texas Legislature, I would vote to repeal it." Where Scalia is caustic, Thomas is cautious and judicious.
Thomas may have recently staked out independent ground in high-profile cases; but he's always been more independent than court-watchers give him credit for. Thomas has frequently written lone opinions to lay out his own view of the law, especially when the rest of the Court (including Scalia) subscribes to a line of precedent that Thomas thinks should be abandoned. In addition to this year's Lara opinion, where Thomas wanted to reexamine "the premises and logic" of the Court's hopelessly confused tribal sovereignty jurisprudence, last year Thomas argued for abandoning the Court's Eighth Amendment "proportionality" jurisprudence in a case about California's three-strikes law; both times, he wrote alone. In 1995 in U.S. v. Lopez and later in U.S. v. Morrison--landmark victories for conservatives in which the Court restricted Congress's ability to regulate guns and rape, leaving those matters to the states--Thomas wrote by himself to say that even those opinions did not go nearly far enough in limiting Congress, and that Rehnquist's "rootless and malleable standard" was "inconsistent with the original understanding of Congress' powers." And in 2000, in Indianapolis v. Edmund, Thomas wrote separately to suggest that the Court's 1976 and 1990 cases upholding roadblocks were at odds with the framers' view of the Fourth Amendment, and that suspicionless seizures were probably unconstitutional, despite precedent to the contrary.
On some subjects, like the degree of discretion government should allow law enforcement and the balance of power between state and federal governments, Thomas is easily one of the Court's most conservative members. But in other areas, especially privacy and free speech, Thomas's jurisprudence is quite skeptical of government power, in keeping with what he perceives as the classical liberalism of the Constitution's framers.
To be sure, Thomas and Scalia--the Court's two committed originalists--frequently agree. But this term six other pairs of justices agreed more frequently than they did. Justices Souter and Ginsburg were in complete agreement in 85 percent of the Court's decisions. Chief Justice Rehnquist agreed with Justice O'Connor in 79 percent and Justice Kennedy in 77 percent. Justices Stevens and Souter agreed 77 percent of the time; so did Justices Ginsburg and Breyer. Thomas and Scalia agreed in only 73 percent of the cases. Thomas regularly breaks with Scalia, disagreeing on points of doctrine, finding a more measured and judicial tone, and calling for the elimination of bad law. Unless he is simply a very bad yes-man, CLARENCE Thomas is a more independent voice than most people give him credit for.
Will Baude is a student at Yale Law School.
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