and just voted in lock step with however Scalia voted
False
"• In decisions that have split the court in any direction, Justices Scalia and Thomas have voted on opposite sides more often than they voted together. They differed in all three of the non-unanimous criminal-law cases that the court has decided so far."
opinionator.blogs.nytimes.com
Comparison with Justice Scalia Thomas is most often compared to Justice Antonin Scalia, both support overturning Roe v. Wade, both reject the existence of a Negative Commerce Clause, both feel that the only restriction on how prisons treat inmates is what actually constitutes Cruel and Unusual Punishment under the Eighth Amendment, and both support strong sovereign immunity for states by virtue of the Eleventh Amendment. [3]
But these Justices have significant differences. Through the 2006-2007 term, Thomas had written 252 concurrences or dissents, of which Scalia had joined about 2/3rds. Conversely, Scalia had written 480 concurrences or dissents (he has served more years on the Court), of which Thomas had joined about half.
Thomas sided with free enterprise and wrote the opinion for the Court in upholding an FCC rule that placed broadband cable services outside of the regulatory definition for "telecommunications service", despite how the FCC rejected a contrary ruling by a Court of Appeals. [4] Scalia dissented in a forceful manner, and thereby defended general judicial authority at the expense of free enterprise.
Scalia typically rejects the use of legislative history more often than Thomas does. Scalia also rejects the important line of cases establishing a constitutional right of parents to direct the upbringing of their children, see Pierce v. Society of Sisters, while Thomas has not rejected that line of cases or a constitutional right of parents in some limited cases. [5]
Thomas takes a broader view of state sovereignty over intrastate activities against encroachment by the federal government. In Gonzales v. Raich, 545 U.S. 1 (2005), Thomas dissented from the Court opinion that upheld a federal law that interfered with California's legalization of marijuana for alleged medical purposes. In other words, Thomas felt that the federal government lacked the power to interfere with state sovereignty over this intrastate activity. Scalia, in contrast, joined the majority of the Court in upholding application of federal law to destroy marijuana plants grown lawfully under California law.
Thomas also has taken more conservative positions than Scalia has. Thomas alone embraced a conservative view of the Second Amendment. In Printz v. United States, Thomas wrote a concurrence strongly suggesting a conservative, individual-rights view of the Second Amendment. No other Justice on the Court joined that concurrence. Only Thomas has expressed disagreement with the "aggregation principle" used to expand federal power based on the Commerce Clause. [6]
Justices Thomas and Scalia differ on the issue of free speech and pornography. Thomas provided the crucial fifth vote in United States v. Playboy Entm't Group, 529 U.S. 803 (2000), which rejected indecency regulation of cable television in part because "[t]he question is whether an actual problem has been proved in this case. We agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban." [7] Scalia dissented, expressly his view that the government has broader powers under the First Amendment to regulate indecency on cable television.
Thomas again provided the key fifth vote in Ashcroft v. ACLU, 542 U.S. 656 (2004), which invalidated as unconstitutional a federal law criminalizing the posting on a commercial website of pornography harmful to minors unless there were protections against access by minors. The 5-4 Court placed the burden on parents to keep their children away from pornographic sites, rather than allowing Congress to place the burden on pornographers to limit access to their sites. Scalia, Justice William Rehnquist, Justice Sandra Day O'Connor and Justice Stephen Breyer dissented.
Thomas tends to oppose government power more often than Scalia does. In a 5-4 decision written by Thomas, from which Scalia dissented, Thomas held that the United States was wrong to seize $357,144 in cash from a traveler simply because he failed to report it as required by law. Thomas, writing for the Court, held that such a forfeiture "would violate the Excessive Fines Clause of the Eighth Amendment ... because full forfeiture of respondent's currency would be grossly disproportional to the gravity of his offense." [8]
Thomas is more likely than Scalia to enforce a statute that is wrong as a matter of policy, as Thomas is more likely to hold that Congress alone can fix its own law. [9]
Thomas has called for ending a right of free speech for students in public school, and stated his view that Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), "is without basis in the Constitution" and should be overruled. [10] Neither Scalia nor any other conservative has yet supported this position of Thomas.
On the Negative Commerce Clause, Thomas is more reliable than Scalia in defending state laws that discriminate against out-of-state companies. Thomas, for example, wrote the dissent in the 5-4 decision invalidating a Michigan law that limited shipments by out-of-state wineries. [11] Scalia split from Thomas and surprisingly joined the more liberal majority in that case, which was presented using the issue of the Negative Commerce Clause but then decided based on slightly different grounds.
On the issue of compelled speech, Thomas stronger than Scalia in defending a First Amendment right not to pay for something with which one disagrees: [12]
I write separately, however, to reiterate my views that "paying money for the purposes of advertising involves speech," and that "compelling speech raises a First Amendment issue just as much as restricting speech." Id. at 504 (THOMAS, J., dissenting). Any regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny. Scalia did not join Thomas's concurrence above.
Justice Thomas favors reviving the " Privileges and Immunities Clause."
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