and Scalia writes his opinions
False.
He has often disagreed with Scalia, sometimes joining in the same side of the case, but for different reasons, sometimes joining in with the other side, or even dissenting all by himself. He's more of an orginalist than Scalia and has some other disagreements.
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[Jonathan Adler, January 22, 2007 at 7:36am] Trackbacks
Greenburg on Thomas:
In today's Wall Street Journal, Jan Crawford Greenburg has a subscribers-only op-ed aobut Justice Clarence Thomas adapted from her new book. She argues that, from the beginning, Justice Thomas has been far more independent and influential than many realize. Here are the opening grafs:
Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive — and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.
That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.
volokh.com
They vote differently a lot more than people think. They were on different sides on the med. marijuana case for one example. Another example is Scalia supports the negative commerce clause as matter of stare decis, while Thomas wants it overturned.
...
they did part company last year in a case involving cross-burning. Specifically, they disagreed on the Constitutionality of a Virgia law that held cross-burning to be prima facie evidence of intent to intimidate. Scalia (and the five justice majority that included Stevens, Breyer, O'Connor and Rhenquist) found that an incidence of cross-burning COULD be a protected form of free expression and that the state could not assume that cross-burning IN AND OF ITSELF is an act of intimidation. Thomas wrote a pretty strongly-worded dissent that cross-burning was conduct, not expression, and one that had been used to terrorize African-Americans for generations.
boards.straightdope.com
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.
outsidethebeltway.com
...Greenhouse focused on the various opinions in the case. She was especially intrigued by the contrasting views of Justices Thomas and Scalia -- particularly as they pertained to the methodology by which the two conservative justices insisted the case be decided...
...Scalia dissented and claimed that history supported state laws prohibiting anonymous political writings. Thomas I believe got the better of the argument in his concurrence, in which he noticed that the Federalist Papers, the second holiest document in the arc of the originalists, where published under a pseudonym.
books.google.com
Clarence Thomas, Liberal?
By Matthew Cooper - March 4, 2009, 3:23PM
No, of course not. But the conservative jurist did side with the Ginsburg, Stevens, Kennedy, Souter, and Breyer in the case of Wyeth v. Levine. The court ruled that FDA approval doesn't insulate drug companies from law suits. Thomas wrote a separate opinion taking shots at the court's use of pre-emption, letting federal law supercede state law.
tpmdc.talkingpointsmemo.com
...Thus, I think that Toobin probably misunderstood the point Justice Scalia was trying to make. However, I think Toobin is right that at least an unintended implication of Justice Scalia's comment is that he thinks that Justice Thomas is indeed "a nut." What Justice Scalia means by saying he's not a nut is that even when his conservative, textualist and originalist philosophy would lead to dramatic conclusions with respect to various constitutional questions considered as matters of first impression, he nonetheless accepts longstanding precedents to the contrary. Thus, his philosophy standing alone might call for the invalidation of most federal administrative agencies or the conclusion that the Bill of Rights does not limit state government, but so ruling would be terribly destabilizing to the legal order---in a word, nuts---and thus he accepts stare decisis. Justice Thomas, he has said, does not accept stare decisis, or accepts it to a much lesser degree...
dorfonlaw.org
Safford Unified School District v. Redding (Thomas partially dissented, disagreeing with Scalia, and every other justice)
en.wikipedia.org
National R.R. Passenger Corp. (Amtrak) v. Morgan (2002): Justice Thomas wrote the opinion for the 5-4 majority taking a middle ground on when the "continuing violation" doctrine allows courts to extend discrimination plaintiffs' limitations periods - specifically, that the doctrine can be used to extend the limitations period for claims of ongoing ("continuing") harassment but not for more tangible, point-in-time decisions like denials of promotion). Dissenting, arguing that the continuing violations doctrine cannot apply to harassment claims either, were Justices O'Connor, Kennedy, Scalia, & Rehnquist. Thus, Justice Thomas here played the O'Connor/Kennedy/Powell role of joining the four quasi-liberals to form a majority against his usual conservative cohort.
prawfsblawg.blogs.com
...So in order to extend the Second Amendment to the states, the court seemed to be left with the Due Process Clause. That is, the court would have to rule that the right to bear arms was a right so fundamental that there could be no lawful way to abridge it without violating due process of law.
But constitutional scholars have long argued that “incorporation” through the Due Process Clause was misguided. “It’s a pretty impossible concept to explain because the Due Process Clause was not the vehicle by which the 14th Amendment founders thought they were safeguarding fundamental rights,” said Douglas Kendall, the head of the Constitutional Accountability Center, to the WSJ’s Jess Bravin last year.
Commentators on the right and left urged the Supreme Court to reverse the 1873 cases and safeguard the right to bear arms through the Privileges or Immunities Clause. Such a move could have opened an avenue for individuals to claim new rights, some which might have pleased liberals, others which might have pleased conservatives.
Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.
But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”
But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:
[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.
The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog."...
blogs.wsj.com
In addition to cases of actual disagreement you have a number of cases where Thomas wrote the opinion that Scalia joined in, rather than the other way around. |
