pageok
pageok
pageok
Jan Crawford Greenburg on Clarence Thomas:

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).

Related Posts (on one page):

  1. No More Supreme Picks for Bush?
  2. Jan Crawford Greenburg on Clarence Thomas:
  3. Jan Crawford Greenburg's Supreme Conflict:
Kovarsky (mail):
i'd be interested to see stats on how they line up as textualists on statutory interpretation (in other words, holdings that dont require a stance on "originalism"). i've been trying for a while to watch fudges the strict textualist outcome more frequently, but i haven't really been able to identify one doing it more than the other. i know earlier this term thomas wrote a hyper-textualist dissent in the immigration case about aggravated felonies and removal, but scalia joined the majority opinion, which was also textualist. both thomas and the majority seemed to be cherry-picking textualist cannons, although to be honest, as between the two, thomas seemed guiltier of that offense.
1.28.2007 6:16pm
CrazyTrain (mail):
Thomas' libertarian streak

Excuse me while I gag.

See Hamdi v. Rumsfeld, 524 US 507 (2004) (Thomas, J., making a fool of himself).
1.28.2007 6:44pm
Kovarsky (mail):
CrazyTrain,

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.
1.28.2007 6:49pm
Ilya Somin:
Thomas' libertarian streak

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.
1.28.2007 6:58pm
Waldensian (mail):
I love those lone Thomas dissents. It's as if he's broadcasting his belief that Scalia, Alito, and Roberts have been duped once again by the liberals. :)
1.28.2007 7:00pm
CrazyTrain (mail):
No one who believes that a US citizen has no right to be heard at all by the judiciary based solely on one person's word is a libertarian. Justice Thomas's Hamdi dissent is the most erroneous understandings of the nature of our legal system to emanate from a Justice in the last 50 years (since Korematsu — although I understand that the Malkinites here believe Korematsu was legal genius). If accepted as law, any person could be detained indefinitely based on the word of the President alone; and before you start talking about where Hamdi was caught, I suggest you read Thomas's opinion.
1.28.2007 7:18pm
Loki13 (mail):
CrazyTrain,

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!
1.28.2007 7:25pm
Ted Frank (www):
I agree that it is not news to any interested observer that Thomas is a different justice than Scalia. What is fascinating and novel about Greenburg's analysis is that it demonstrates that Thomas moved Scalia (and other justices) to the right.
1.28.2007 7:32pm
J-R:
What I think is intriguing about Greenburg's discussion of Justice Thomas vis-a-vis Justice Scalia is her description of Justice Thomas (from the very beginning of his tenure) convincing Justice Scalia to join his side. The anecdotal evidence provided by Greenburg not only indicates divergences between Thomas and Scalia, but also reveals Thomas persuading Scalia.

Greenburg also proffers anecdotal evidence about Justice Thomas alienating Justice O'Connor, but that's another story.
1.28.2007 7:37pm
Ilya Somin:
Justice Thomas's Hamdi dissent is the most erroneous understandings of the nature of our legal system to emanate from a Justice in the last 50 years (since Korematsu — although I understand that the Malkinites here believe Korematsu was legal genius). If accepted as law, any person could be detained indefinitely based on the word of the President alone; and before you start talking about where Hamdi was caught, I suggest you read Thomas's opinion.

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:


the Court has at times held, in specific circumstances, that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. In Ex parte Endo, 323 U.S. 283 (1944), the Court held unlawful the detention of an admittedly law-abiding and loyal American of Japanese ancestry. It did so because the Government's asserted reason for the detention had nothing to do with the congressional and executive authorities upon which the Government relied. Those authorities permitted detention for the purpose of preventing espionage and sabotage and thus could not be pressed into service for detaining a loyal citizen. See id., at 301—302. Further, the Court "stress[ed] the silence … of the [relevant] Act and the Executive Orders." Id., at 301 (emphasis added); see also id., at 301—304. The Court sensibly held that the Government could not detain a loyal citizen pursuant to executive and congressional authorities that could not conceivably be implicated given the Government's factual allegations. And in Youngstown, Justice Jackson emphasized that "Congress ha[d] not left seizure of private property an open field but ha[d] covered it by three statutory policies inconsistent with th[e] seizure." 343 U.S., at 639 (concurring opinion).

(emphasis added)


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.
1.28.2007 7:46pm
Duncan Frissell (mail):
Thomas' commitment to a broader view of 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.
1.28.2007 8:27pm
Sasha Volokh (mail) (www):
CrazyTrain: We have Malkinites "here"?
1.28.2007 8:37pm
Loki13 (mail):
Duncan,

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?
1.28.2007 8:58pm
r78:
As Allan Bloom used to say (of others), Clarence Thomas is at most a "middle level thinker".

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.
1.28.2007 9:19pm
Respondent (mail):
Professor Somin,
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.
1.28.2007 9:22pm
Respondent (mail):
Sorry for the spelling and grammar typos :(
1.28.2007 9:24pm
John Herbison (mail):
Of course Uncle Justice Thomas is an originalist. Just ask President Gore.
1.28.2007 9:39pm
SimonD (www):
I would still maintain that the reall surprising thing about Greenburg's discussion of Thomas isn't what it reveals, it's who's saying it, and to whom. Of course regular court watchers know the idea that Thomas is Scalia's clone is wrong. But that is an image that has been created by the MSM for public consumption, and here is -- with all due respect to JCG -- an MSM reporter utterly demolishing that myth in a book intended for public consumption. That's what really surprised me about it.
1.28.2007 10:39pm
SP:
Of course Thomas is Scalia's lackey. One cannot be a black conservative without a white "master" after all.

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.
1.28.2007 11:44pm
SP:
"Of course Uncle Justice Thomas is an originalist. Just ask President Gore."

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?
1.29.2007 12:02am
Lev:

instantiate


?
1.29.2007 12:05am
John Herbison (mail):
Regarding the 2000 presidential election, the originalist position should have been for the states to select electors according to state law and, if the election could not be determined in the electoral college, for the House of Representatives to select the president and the Senate the vice-president. Five members of the Supreme Court, however, couldn't resist acting as wardheelers rather than jurists.
1.29.2007 12:41am
SP:
What if the state had one set of rules before the election, then decided to change those rules after the election when it became clear that a preferred candidate wasn't going to win? Are you saying the Court should have just sat out such a scenario?
1.29.2007 12:51am
Roger Schlafly (www):
John: Florida did select its electors according to Florida state law, as passed by the Florida legislature.
1.29.2007 1:04am
Jay Myers:
John Herbison:

Regarding the 2000 presidential election, the originalist position should have been for the states to select electors according to state law and, if the election could not be determined in the electoral college, for the House of Representatives to select the president and the Senate the vice-president. Five members of the Supreme Court, however, couldn't resist acting as wardheelers rather than jurists.

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.
1.29.2007 1:52am
josh:
JC Greenberg's Thomas/Scalia-relationship reporting likewise is nothing new because she was writing about it as far back as 2000 in the Chicago Tribune.

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.
1.29.2007 11:18am
J. F. Thomas (mail):
But that is not the same thing as saying that he justified essentially unlimited executive power.

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.
1.29.2007 12:32pm
Patrick Wright (mail):
"Regarding the 2000 presidential election, the originalist position should have been for the states to select electors according to state law and, if the election could not be determined in the electoral college, for the House of Representatives to select the president and the Senate the vice-president. Five members of the Supreme Court, however, couldn't resist acting as wardheelers rather than jurists."

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.
1.29.2007 12:44pm
E:
Patrick Wright, does that imply that the decision was a political one?
1.29.2007 1:19pm
SimonD (www):
E - I think it means that when the stakes are extraordinarily high, Justices will sign on to an opinion that gets the right result by the wrong reasoning if it will prevent a majority - or quite possibly, worse yet, a plurality - opinion deciding the case the wrong with for the wrong reasons.

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.
1.29.2007 9:12pm
Respondent (mail):
I may as well add in Bajakajian as one more case where Thomas ended up as more liberatarian than Scalia. I inadvertantly forgot it. I still maintain that Scalia and Thomas are roughly at the same point on the liberatarian axis.
1.29.2007 11:34pm