Out of Scalia's Shadow

by Dylan Carp

Clarence Thomas emerges as one of America's great Supreme Court justices.


The winning attorney in a case before the Supreme Court said of Justice Clarence Thomas's dissent in the case that it was "almost as though he is a robot being jerked by Justice Scalia."

A highly regarded Court watcher has written in The New Republic , "As Thomas gains intellectual confidence, perhaps he will transcend his ghost-written imitations of Scalia in the same way that he abandoned his ghost-written speeches about natural law. But when Justice Thomas does feel ready to express his own beliefs, it is hard to imagine what he will say."1

Some of Thomas's supporters have, of course, questioned this unflattering appraisal. As Laura Ingraham and Stephen Smith, both former law clerks of Thomas, have written in response to such criticism, "Are we to expect judges to vote against their conscience out of a concern that they will be portrayed as blindly voting with this or that bloc? Certainly it is true that Scalia and Thomas share the same general judicial philosophy. However, it is also true . . . that they have often disagreed in the application of these principles."2

Anyone who examines the opinions of Justices Thomas and Scalia must conclude that Ingraham and Smith are correct. Thomas has distinguished himself from Scalia in two related ways. First, in interpreting the Constitution, Thomas looks more to original understanding, whereas Scalia focuses on history and tradition. Second, Thomas is more willing to adopt new (or previously discarded) judicial doctrines, whereas Scalia is content to follow judicial precedent.

In the first category is the lodestar for Thomas and Scalia watchers, the 1995 case McIntyre v. Ohio Bd. of Elections . This remains the only case in which one justice directly criticized the other. The central issue in McIntyre was whether a state law banning the distribution of anonymous campaign literature violated the First Amendment.

The Court held that it did. The majority reasoned that because anonymous publications have "played an important role in the progress of mankind," and because anonymity is sometimes the only refuge for dissidents, anonymous political speech must be protected by the Amendment.

Thomas wrote a solo concurrence in which he criticized the Court for failing to seek the original understanding of the Free Speech Clause: "Whether great works of literature by Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases 'free speech' or 'free press' meant to the people who drafted and ratified the First Amendment." In seeking that meaning, Thomas relied most on three pieces of evidence. First, he noted that The Federalist Papers , essays written by three of the nation's Founders, were published anonymously in connection with the debate over whether the colonies would ratify the new Constitution. Second, he noted that many newspapers of the time were owned by prominent supporters of the Constitution, and that those papers published anonymous political articles after they were harshly criticized for refusing at first to do so. Finally, he noted that the colonists widely supported a jury's refusal to convict the printer John Peter Zenger when he was tried for seditious libel in 1735 for refusing to reveal the anonymous authors of published attacks of the Crown governor of New York. Based on this evidence, Thomas concluded that the Free Speech Clause was originally understood as protecting anonymous political leafleting.

Scalia disagreed. He argued first that although Thomas was correct in seeking the original understanding of the Clause, Thomas interpreted the historical evidence incorrectly and came to the wrong conclusion. He wrote that "the sum total of the historical evidence marshalled by [Thomas] for the principle of constitutional entitlement to anonymous electioneering is partisan claims in the debate on ratification (which was almost like an election) that a viewpoint-based restriction on anonymity by newspaper editors violates freedom of speech." This evidence, for Scalia, was insufficient to warrant striking down the law.

Instead, Scalia argued that since many states have long had laws banning anonymous political leafleting, it is highly unlikely that the First Amendment prohibits such laws. "Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality." Scalia noted that the challenged law was enacted in 1915, the earliest such law had been adopted by Massachusetts in 1890, and at the time of the lawsuit every state except California had a similar law:

Perhaps it is easy to read too much into Thomas's and Scalia's disagreement in this one case. However, I think the disagreement has important implications when viewed in the context of the originalist/anti-originalist debate. For example, perhaps the ultimate weapon the anti-originalists have is Brown v. Board of Education . Their devastating syllogism goes something like this: by the year 1954, segregation had existed for generations; originalists defer to tradition when interpreting the Constitution; therefore, originalists would have dissented in Brown ; but only a bad person would have dissented in Brown ; therefore, originalists are bad people. In McIntyre , Thomas showed that he is willing to reverse tradition if he thinks the Constitution's original meaning requires.

Thomas's writings on the Equal Protection Clause show a similar outlook. In a 1995 case, Missouri v. Jenkins , Thomas wrote that he would have voted with the Brown Court to invalidate segregation based on the original intent of the Framers of the Fourteenth Amendment, even though there was a long tradition of segregation. (In his concurrence, Thomas became the first Justice ever to criticize the reasoning of the Brown decision in a published opinion, arguing that the Court should not have relied on social science research indicating that segregation harmed black students' ability to learn.

As for Scalia, he did write in Adarand v. Pena (1996), that "In the eyes of government, we are just one race here. It is American." However, in that case he voted to outlaw affirmative action, a practice which has existed only since the mid-1960s; he has not explicitly indicated in any published opinion that he would have joined the Brown majority in rejecting the more ingrained tradition of segregation. (This is not to say that Scalia would have dissented in Brown -- perhaps his views on colorblindness would have led him to reverse tradition.)

A second distinction between the two is Thomas's willingness to go further than Scalia in rejecting settled Court doctrine for new or previously discarded doctrine. Consider the judicial precedent set by Valentine v. Chrestensen (1942), in which the Court held that "commercial speech" (advertising), merits less protection than political or artistic speech. The Court reasoned that commercial speech is more durable and less central to the interests of the First Amendment than other types of speech, and that there is an inherent danger that conferring equal status upon commercial speech will erode the protection accorded noncommercial speech, simply by a "leveling process." In 44 Liquormart v. Rhode Island (1996), Thomas became only the second justice to write that he would afford full protection to commercial speech. He wrote, "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." In support, Thomas cited an old 1878 Supreme Court case which struck down a federal ban on lottery advertising under the First Amendment, and opined that the Framers' political philosophy equated liberty and property and did not distinguish between commercial and noncommercial speech, as evidenced by a pro-free speech essay by Benjamin Franklin in support of his decision to print an ad for voyages to Barbados.

Scalia, in contrast, wrote that although it may be paternalistic to restrict commercial speech, "it would also be paternalism for us to prevent the people of the States from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitution itself forbids them. I will take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment's preservation of 'the freedom of speech,' and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people." Although many Framers probably viewed commercial speech restrictions with suspicion, "I consider more relevant the state legislative practices prevalent at the time the First Amendment was adopted, since almost all of the States had free-speech constitutional guarantees of their own, whose meaning was not likely to have been different from the federal constitutional provision derived from them." Since the parties did not supply any evidence on that question, Scalia withheld judgment as to the proper degree of commercial speech protection.

Speech and Money

Since the 1976 case Buckley v. Valeo , the Court has held that money spent by political candidates is protected by the First Amendment, but money given to candidates is not. The Court reasoned that a restriction on the former limits the number of issues discussed, the depth of their exploration, and the size of the audience reached; but restrictions on the latter affect only the symbolic expression of support evidenced by a contribution. In Colorado Republican Federal Campaign Cmte. v. F.E.C. (1996), Justice Kennedy wrote a plurality opinion arguing that money spent by a candidate's political party on the candidate's behalf is also protected by the First Amendment. Scalia joined that opinion. Thomas, in a solo opinion, wrote that the Buckley distinction should be discarded, and that the First Amendment should be held to protect both a candidate's spending and receiving of money. He argued, "Contributions and expenditures both involve core First Amendment expression because they further the discussion of public issues and debate on the qualifications of candidates integral to the operation of the system of government established by our Constitution. When an individual donates money to a candidate or to a partisan organization, he enhances the donee's ability to communicate a message and thereby adds to political debate, just as when that individual communicates the message himself."

Interstate Commerce Rightly Understood

The Constitution gives Congress the power to "regulate commerce . . . among the several states." This provision, which has come to be called the "Commerce Clause," has been interpreted very broadly -- Congress may regulate any activity as long as all similar activities, taken in the aggregate, substantially affect interstate commerce. For example, in the 1942 case Wickard v. Filburn , a unanimous Supreme Court permitted the federal government to fine Mr. Filburn for exceeding his wheat quota of 222 bushels, when he harvested 239 additional bushels for his family to consume. The Court reasoned, "[that Filburn's] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." Many commentators, even the Court itself, have opined that the federal regulation upheld in Wickard surely approaches the bounds of the Commerce Clause's scope.

But it wasn't until United States v. Lopez in 1995 that the Court for the first time since the mid-30s, held that a federal law exceeded the scope of the Clause. In a 5 4 Rehnquist opinion joined by Scalia and Thomas, the Court held that the Gun-Free School Zones Act was unconstitutional. The Court reasoned that since gun possession is not an economic activity, and since education is traditionally a concern of the states, the Act exceeded all Commerce Clause precedent.

Thomas, in contrast, wrote a solo concurrence, in which he argued that precedent should be overruled. He wrote that the Court should no longer look to activities in the aggregate, and should probably require that an activity actually be interstate commerce, rather than simply affect or substantially affect interstate commerce, when ruling on whether the Commerce Clause empowers Congress to regulate that activity: "it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. . . . [Indeed,] under our jurisprudence, if Congress passed an omnibus 'substantially affects interstate commerce' statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional. Even though particular sections may govern only trivial activities, the statute in the aggregate regulates matters that substantially affect commerce."

Fealty For Federalism

Since Bounds v. Smith (1977), the Court has held that the Constitution requires prison authorities to assist inmates in the preparation and filing of legal papers by providing prisoners with adequate law libraries and legal assistance. In Lewis v. Casey (1996), the Court held, in an opinion by Scalia, that Arizona's prison law library system satisfied the Bounds requirement. Thomas wrote a solo concurrence, arguing that Bounds probably should be overturned. In addition to arguing that Bounds had been an improper extension of precedent, Thomas wrote that the right identified there gives too much power to federal courts over state prisons:

The Amendment that Dare Not Speak Its Name

In United States v. Printz (1997), Thomas again agreed with Scalia argument, but added a twist of his own. In this case, the Court held 5-4 that the background check provisions of the Brady Act were unconstitutional because Federalism prohibits the federal government from forcing state officers to implement a federal law.

Thomas argued that the Brady law also possibly violated the Second Amendment, becoming, so far as I have been able to discover, the only Justice to write favorably of the right to bear arms in a published opinion. In stark contrast to the First Amendment, upon which entire treatises are based, the Second Amendment has been cited in only a handful of cases. This is mostly the result of the U.S. v. Miller (1939), which held that a sawed-off shotgun was not protected by the Amendment because its possession is not reasonably related to a well-regulated militia.

On the rare occasions it is mentioned, Miller has generally been read as merely a sanction of the states' right to support militias, not as protection of the individual right to bear arms. In Printz , Thomas agreed that the Brady Act violates Federalism, significantly adding that the Act may also violate the Second Amendment, and arguing that the Court should not read Miller as standing for the proposition that there is no individual right to bear arms. He wrote:

A Man Alone

It is true that Thomas has followed Scalia's lead in some areas. For example, Thomas has joined all of Scalia's major opinions regarding substantive due process, the area of the law concerning abortion, contraception, assisted suicide, and other "privacy" issues. Because the cases where he has concurred with Scalia are arguably the most controversial and most heavily reported, this may be one reason why Thomas is widely perceived as a Scalia clone. But in areas such as the First and Second Amendments, Federalism, and the Equal Protection Clause, Thomas has shown that he is significantly more comfortable than any other Justice, including Justice Scalia, in rejecting both tradition and judicial precedent in the search for the original understanding of the Constitution. Perhaps his relative youth -- at age 50, he is the Court's youngest member by ten years -- leads him to feel that he has less stake in the status quo than his brethren. Whatever the reason, in many areas of the law Justice Thomas, and not Justice Scalia, marks the front line of originalist jurisprudence.


1. Jeff Rosen, "The Real Clarence Thomas: An Erratic Conservative Activist in Strict Constructionist's Clothing," Los Angeles Daily Journal , v105, n182, Sept. 17, 1992, p6, col3.

2. "The War Against Clarence Thomas: Two of His Former Law Clerks Ask: Will the Unfair Attacks Ever Stop?" The Washington Post , Nov. 6, 1994, C-2

Liberty, September 1998, © Copyright 1998, Liberty Foundation

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