Justice Antonin Scalia vs. Justice Clarence Thomas:
The “Originalist Bloc” Divided
Andrea Waters
Honors Thesis
“Theoretical debates about Constitutional adjudication are as old as the Constitution
itself” (Gerber pg. 38). There are advocates for almost every type of interpretative method that
they believe the Supreme Court “should and ought” to use to make its judicial decisions. The
question over how the United States Supreme Court justices should best interpret the
Constitution is a raging debate across the country. The debate began in the 1970’s on a small
scale but it was brought to the public forefront during the Reagan administration. Originalism is
one of the dominating methods in America today and one, which has been embraced by two of
the current United States Supreme Court justices, Justice Antonin Scalia and Justice Clarence
Thomas. Originalism, also referred to as original intent, is the belief that “text should be
construed strictly and should not be construed leniently” (Scalia pg. 23). That the text is to be
read exactly as it would have been understood when it was ratified. In the following pages I will
be examining the theory of Originalism as well as looking deeper at the jurisprudence of Justice
Thomas and Justice Scalia who subscribe to the Originalist interpretive method. In the first part I
will be investigating Originalism as well as other popular interpretative methods. The next
section will concentrate on Justice Scalia and Justice Thomas and what it is in their past that
could have influenced them to become Originalists. The third section of the paper will look at the
similarities in jurisprudence between the Justices by analyzing cases in which they join together
and agree in an opinion. The last section, the true focus of the paper, concentrates on how it is
that these two Justices disagree in many cases and what leads them to do so.
I. The Theory of Originalism and Other Interpretive Methods
Originalists argue that strict reading is found by interpreting the Constitutional text in a
way that fits the intended meaning of the Framers (or authors) of the Constitution. Those who
argue for this interpretive method believe the meaning of the Constitution does not change with
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the times and should not be seen as “evolving”. They argue that the Framers made the
Constitution flexible by allowing for an orderly process for achieving evolution. The advocates
for Originalism state that if there is a change that needs to be made to the Constitution in order to
best resolve or attack a contemporary problem the only way is to follow the amendment process
laid out in the Constitution. Keith Whittington, in Constitutional Interpretation, argues that the
Constitution will be “seriously undermined if political participants could cynically offer up as
constructions, meanings that are recognizably at variance with the text simply in order to avoid
the more arduous process of a formal amendment” (Whittington pg. 11).
Originalists also claim that if the Court is allowed to interpret the Constitution in a lenient
way then this will compromise the neutrality of the Court and will bring political aims into
consideration and Justices will be able to “create” law. Many Originalists point to the “right of
privacy” used in Griswold v. Connecticut (1965), which was found in the “penumbras” of
various amendments in the Bill of Rights, as an example of how the Court has become a place of
Judicial Activists. In the case of Griswold, the Court concluded that the Constitution does protect
the right of privacy, referencing the “penumbras” of other Constitutional protections. Originalists
argue that if the Court is able to cite rights they find in the “penumbras” of enumerated rights it
will give judges too much power. Lackland Bloom finds in his research on the history of
Supreme Court Constitutional interpretation that the Marshall Court was able to approach the
text largely free of precedent but that “subsequent courts were faced with an accumulation of
precedent and doctrine, greater access to evidence of the original understanding as more
historical evidence became available and significant changes in the social and economic
conditions, all this is seen in the evolving work product of the justices” (Bloom pg. 61).
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Originalists do not agree that there should be the possibility of an evolving work product, but one
that stays consistent with the original text.
There are, however, many scholars who question whether there is only one type of
Originalist. Dennis Goldford, in The American Constitution and the Debate over Originalism,
argues that there are two different kinds of Originalists; those whom he says subscribe to “hard
Originalism”, the belief that the original meaning of the law is grounded in the intentions of the
authors of the Constitution. There are also those who follow “soft Originalism”, that the original
intent is grounded in the understanding of those who ratified it as well as the general public at the
time of its completion (Goldford pg. 122). Both kinds of Originalists look back to the founding
of the Constitution for the answer to a contemporary problem. They differ, however, in if they
are looking at the writers or the readers at the time. Justice Scalia subscribes to a type of soft
Originalism theory, that the law should be based on what the public at the time of the adoption of
the Constitution would have declared the law to be. Scalia believes this to be stricter than
allowing Justices to attempt to decipher “intent” of either the authors or of the ratifiers. Others
argue that there is a difference between the intent of the authors and the understanding of those
who ratified and that it is important which group you look at for their intent. Some scholars argue
that the disparity between the ratifiers and the framers is not the main issue because they are both
equally difficult to find. Lawrence Sollum states, “all of the problems that attended the equation
of constitutional meaning with Framers’ intent seem to attach to ratifiers’ intent. Moreover,
evidence may be even more difficult to obtain and the problems of group intention of multiple
conventions with multiple members even more confounding with respect to ratifiers’ intent”
(Sollum pg. 930).
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There are other scholars who write of different versions of Originalism; Tara Smith
argues in her criticism of Originalism that there are three species of Originalism, “Original
Intent, Public Understanding and Textualism” (Smith pg. 162). Though in most cases
Originalism is believed to be the same thing as original intent, according to Smith, original intent
is the view that a judge is to apply the Constitution as intended by the framers. The “public
understanding” view is that it is not the lawmaker’s intent that matters but the ordinary or
commonplace understanding of the words’ meaning. Textualism, the one of the three that Justice
Scalia advocates, differentiates between the framer’s intent and the words explicitly written
(Smith pg.163). Justice Scalia advocates for textualism because believes ruling by intent is just
as ambiguous as “living constitution” and allows the interpreter too much discretion. Scalia looks
directly at the words that were written and what they meant to the public in the late 18th century.
Other individuals who study Originalists who have served on Federal Courts concluded
that there are only two different types of Originalists, “conservative originalists” and “liberal
originalists”. “Conservative originalists” believe that rights are those created through the
democratic process and explicitly written in the Constitution and its amendments; only those
rights are to be protected by the Constitution. “Liberal originalists” aim toward the protection of
the Jeffersonian principles of individual liberty articulated in the Declaration of Independence”,
those endowed by “our Creator” (Sandefur pg. 554). Liberal originalists, such as Justice Clarence
Thomas, believe the “Declaration is part of the organic law of the United States and ought to
guide our understanding of the Constitution” (Sandefur pg. 490). Conservative originalists
disagree, arguing that the Declaration is a world apart from the Constitution and should not be
considered when interpreting the Constitution. Justice Scalia is speculated to be a conservative
originalist according to many scholars because of his disagreement with using the Declaration as
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a source of law. As exemplified above, even though Originalism is only one of many theories of
interpretation it can also be broken down into different categories.
Many believe that Originalism has a strong intuitive appeal because it is an objective
reading of Constitutional text, in contrast to the unpredictable decision-making and subjective
reading associated with the “living constitution” (Sandefur pg. 555). There have been questions,
however, about how the goals of Originalists can be reconciled with the existence of precedents
with which they may not agree. Precedent exists to give the Court a rule or principle that it can
use when deciding succeeding cases with similar issues. Keith Whittington, a proponent of
Originalism, states that “two difficulties emerge: the fact that the use of precedent is one of the
tools of legal interpretation itself, and the transition to correct interpretation” (Goldford pg. 169).
Many critics of Originalism state that its reputation for not following stare decisis makes it
unstable and could cause harm to the judiciary. Even Justice Scalia, a strong advocate of
Originalism, has spoken out against those who argue for extensive change to precedent if it is
seen as different from the original intent of the statute. An Originalist, Whittington, argues for a
gradual transition from non-originalist to originalist law. The argument is that the Originalist
Court will only need to gradually change the way in which it interprets different statutes and
laws whose previous reading had been inconsistent with the Founder’s design, not every
government action that cannot be justified in Originalist terms. For example, one belief is that
the Court has strayed from the Original reading of the Commerce Clause and Whittington
advocates gradually declaring different laws unconstitutional that are upheld by the past reading
of the Commerce Clause.
Originalism is a popular interpretive method, but it is not the only one that has many
supporters. There are those at the opposite side of the spectrum who believe in a “living
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constitution”. This is the belief that the Constitution is “a body of law that changes from age to
age, in order to meet the needs of a changing society” (Scalia pg. 38). According to the people
who subscribe to this view, the Constitution is an evolving document that needs to keep up with
the changing values of our nation. “In theory Originalists look at the text, the framers’ intent, and
the underlying purpose at the time of the Constitution’s adoption. Nonoriginalists on the other
hand, assert that the Constitution is a living document meant to deal with conditions unforeseen
at the time of its adoption” (Goldford pg. 60). Living Constitutionalists believe that the
Constitution is a dynamic document that should respond to the changing needs of America. They
believe that interpreting the Constitution in accordance with the outdated views of the past is not
an acceptable policy matter. They argue that the Supreme Court cannot possibly adequately
decide what the Framers would have done in many of the current cases which deal with today’s
technology and the modern state. They dispute that the framers intention cannot control the
resolution of current problems.
Promoters of the “living constitution” method of interpretation argue that the court should
interpret the Constitution’s broad guarantees taking into account the changing needs and values
of the modern society. These advocates state that the living constitution “is a constitution with
provisions suggesting restraints on the government in the name of basic rights, yet sufficiently
unspecific to permit the judiciary to elucidate the development and change in the content of those
rights over time” (Goldford pg. 57). They argue that the Constitution cannot survive if it is not
evolving and malleable; if it is rigid it will not be able to accommodate the needs of the people.
Advocates of a “living constitution” also counter the popular accusation that they are
more subjective than Originalists by stating that Originalists evaluating the “intent” or motive of
the Framers depends just as much on what the Justice believes to be true. Another criticism that
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advocates of the evolving document level at Originalism is that any sequence of words can
communicate more than one meaning and to conclude that their one interpretation is the only
correct solution is difficult. The debate over the correct constitutional interpretative method
makes it clear that there is tension between constraint and flexibility when it comes to reading
the words the Framers wrote. From Originalists’ perspective, “to accept constitutionalism is
necessarily to accept Originalism; to reject Originalism is necessarily to reject constitutionalism
itself” (Goldford pg. 62). Many cite James Madison writings to Henry Lee in 1824 stating, “It is
the legitimizing Constitution. And if that be not the guide in expounding it, there can be no
security for a consistent and stable, more than for a faithful exercise of its powers” (Madison
1824 pg. 63). Interpreting the Constitution is a very difficult task and both sides of the debate
acknowledge this, but disagree on the way forward for the United States Supreme Court.
There are also popular alternative theories that have been presented in addition to
Originalism and the notion of a “living constitution”. There is the belief that the Constitution
should be read in light of the popular will; must regard the will of the people as all important and
that the Court needs to take the activist role in leading public sentiment. Supporters of this theory
are John Ely, Bruce Ackerman and to some extent Justice Stephen Breyer. This theory centers on
the belief that the “Constitution regards the people as sovereign, above even the Constitution
itself, which is why judges should be guided by the people’s wishes” (Smith pg. 171). This
theory, however, is recognized as an obvious threat to objectivity because the justices are
attempting to read the will of all Americans. Another theory seen as very similar to the idea of an
evolving document is the interpretive method advocated for by Ronald Dworkin. Dworkin writes
that there are values in the law and that each decision is part of an ongoing story. This is
criticized also for giving too much power to the individual judges on the Court. Another method,
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which many times aligns with Originalists, is the idea of “minimalism” and judicial restraint.
Supreme Court Justice Sandra Day O’Connor Justice Anthony Kennedy are associated with this
theory, which promotes saying no more than necessary to justify the decision in a case and to
leave as much as possible undecided (Smith pg. 180). Justice Scalia is also often associated with
judicial minimalism along with his originalist beliefs. From the debate above it is easy to see that
there are many different interpretive methods.
The focus of this thesis, however, is on Originalism and in particular, on analyzing the
interpretive methods of the two justices who adamantly subscribe to its methods, Justice Scalia
and Justice Thomas. They have both served on the Supreme Court for a number of years and
have written many opinions together as the so-called “Originalist bloc”. There are times,
however, when they do not agree as to what is the correct Originalist reading of the Constitution
and they come to difference conclusions in a case. There are also times when they agree as to the
result of the case but their conclusions come from different parts of the text or one Justice
believes the other did not go far enough in their interpretation. These occurrences, when there is
a disagreement over the correct Originalist perspective are the subject of my analysis. But before
delving into the analysis of their differing opinions, we must look at the background of these two
Justices and look at what scholars and critics have to say about them.
II. Background and Influences of Justice Scalia and Justice Thomas
Justice Antonin Scalia was born into an academic family in 1936 in New Jersey. Justice
Scalia attended military prep school in Manhattan; he then proceeded to study at Georgetown
and Harvard law. He graduated at the top of his class and then began to follow in his father’s
footsteps and became an academic and a professor himself. He taught for many years at the
University of Chicago but then became active in politics and served in administrative agencies
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and also as Assistant Attorney General for the Ford Administration. President Ronald Reagan
appointed him to the Court of Appeals in 1982. He only served on the Court of Appeals for four
years before President Reagan appointed him to the Supreme Court of the United States but he
still had enough time to gain a reputation for judicial restraint. While on the Court he became
known for his advocacy of judicial restraint and limited interpretation of Constitutional text.
When nominated for the Supreme Court, Justice Scalia faced no opposition and gained the seat
with a vote of 98-0. At his confirmation hearing, Scalia gave an insight into the type of judge he
was about to be; “in any case, I start from the original meaning” (Rossum pg. 21). Scalia writes
many articles and books and has become the champion for those who agree with his interpretive
method, Originalism. One of his books that is cited the most is A Matter Of Interpretation, a
work in which Justice Scalia argues for Originalism and responds to critiques by other scholars.
In this writing, Justice Scalia criticizes the judicial decision-making that follows subjective intent
and judicial creation of a living Constitution. Supporters of Justice Scalia agree that all Justices
should follow this same interpretive method and look to the text, as it would be understood at the
time of its inception and ratification.
Taking into account the background of Justice Scalia is important when attempting to
evaluate how it is that he became the main advocate for Originalism. What in his life has
influenced him to become the textualist Supreme Court Justice he is? When asked, “when did
you first become an originalist?” he treats the question with much skepticism, stating that he has
always been and that it is a popular and universal belief. One significant part of Justice Scalia’s
identity, which could have had an influence on his textualism belief, is his religious views. He
was raised from a young age to be a devout Roman Catholic. He has even described himself as
“old fashioned” Roman Catholic, saying that he preferred the beliefs of the old Vatican of the
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mid 1900’s. He believes that people should still be praying the rosary everyday as well as
observing all of the holy days if they are to be true Catholics. (Lehrer). This is an important fact
to know about Justice Scalia because this can give an insight into his Originalist Court opinions.
Justice Scalia is an Originalist when it comes to his own religion and the way in which he
believes Catholics should observe their faith. He closely reads the rules they are to follow and
does not follow the modern phenomenon of a more lenient Catholic Church, but argues that the
rules should be followed as they were written.
Another reason that Justice Scalia’s religion is of interest is that Catholicism is a more
textually based faith than many others. This can contribute to his deeply held belief that text
should be read literally. Brisbin, a Professor, contends that Scalia’s Catholic education fostered a
textualist methodology of legal interpretation (Brisbin pg. 12). Brisbin refers to testimony by
other Catholics raised during World War II, a time Justice Scalia was attending Catholic school,
that their education was filled with the “inculcation of a ‘linguistic essentialism’ and ‘obsessed
textualism’, or the special pre-Vatican II attention of Catholic education to the use of words to
define rules of moral conduct” (Brisbin pg. 13). The argument by Brisbin is that Scalia’s
“cultural identity as a person became fused into his constitutional theory” (Brisbin pg. 12).
Besides his religion, it is suspected by many scholars that the beliefs of the elder Scalia
had a large influence on his son. S. Eugene Scalia was a Professor of Romance Languages at
Columbia University. Eugene Scalia translated many texts from their original language into
English, a fact that is important when looking at Justice Scalia’s belief that all texts should be
read exactly as written. The elder Scalia wrote an excerpt in Carducci: His Critics and
Translators explaining his beliefs in the interpretation of text. He states “literalness prevents the
translator from yielding to the temptation of following the line of least resistance, that is, the
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temptation of translating what is unique in the poet of another language by the poetically
conventional and stereotyped of his own language” (Brisbin pg. 13). By referring to the writings
of his father, scholars like Brisbin infer that the elder Scalia passed on his ideas of the
importance of literalness when reading a text on to his son.
It is difficult to pinpoint exactly what it is that influences Supreme Court Justices to hold
the beliefs they do and the interpretive method they practice. When looking at Justice Scalia,
however, one can perhaps see the influence of his early Catholic education as well as his current
beliefs about his religion as well as his early family life as the son of a Professor and translator of
texts.
The background for Justice Clarence Thomas begins rather differently than Justice Scalia
though with some of the same steps along the way in their ascension to the Supreme Court.
Clarence Thomas was born in Pinpoint, Georgia in 1948. He was born in extreme poverty and
very early in life he was sent to live with his grandfather whom he calls “Dad”. He was raised as
a Catholic and attended College of the Holy Cross and later attended Yale Law School. He
originally began attending seminary with the intent of becoming a Priest but, when he
experienced racism, he lost respect for the church because he did not believe it did enough to
combat racism. After practicing law for a short period of time in the private sector he eventually
was appointed as Assistant Secretary for Civil Rights at the U.S. Department of Education. He
was then the Chairman of The Equal Employment Opportunity Commission under President
Ronald Reagan. He was then appointed to the Court of Appeals for the District of Columbia
Circuit. Justice Thomas writes in his memoir My Grandfather’s Son, that when the rumors began
circulating that he would be the next nominee for the Supreme Court he wanted to “avoid going
through a confirmation for a job I didn’t want” (Thomas pg. 202). Despite his hesitance, after
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being on the Court of Appeals for one year and four months Justice Thomas was nominated to
the Supreme Court.
During his time on the Court he has followed very closely his belief in reading the
Constitution in an Originalist way. It is harder to pinpoint the reason Clarence Thomas became
an adamant supporter of this school of interpretation. He, like Justice Scalia, grew up as a
Catholic and for the same reasons as above he may have been affected by the Catholic belief in
reading the text as literally as possible when looking at the moral rules laid down by his faith.
Many have referred to Justice Thomas as an example of a libertarian originalist, an originalist
who stresses individual liberty and limited government. When looking for the reason for his
libertarian beliefs as well as political leanings, he himself cites a few authors who have
influenced him. Justice Thomas cited Richard Wright’s novel, Native Son as a book that was
very influential in his life. Growing up, Justice Thomas experienced extensive racism and he
himself states that he was a very angry person and was disgusted at the way blacks were treated
in society. He placed a fifteen-cent stamp on his Yale degree because he believed that is all it
was worth. The novel, Native Son, is described as an angry novel in which the main character
experiences both white understanding as well as white insensitivity. This could give us an idea as
to why he is a libertarian, because he believes that because of the involvement of the government
in affirmative action they have made his diploma worth nothing because no one respects his
degree. The anger within the novel is said to reflect how Justice Thomas felt during his youth
and this anger led to his current distrust of government.
Another book Justice Thomas cites as influential in his life is Race and Economics by
Thomas Sowell. This book analyzes the relationship between race and wealth within the United
States. Within the book, Sowell argues about the comparisons made between “whites” and
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“blacks” as well as against governmental policies that have been put into place in the United
States, discussing the effects of policies such as rent controls and minimum wage laws affect on
minorities. This again could have led to Justice Thomas’s disapproval of affirmative action and
extensive government involvement in society. In addition, he cites Ayn Rand’s, The
Fountainhead as a novel that has influenced him. Ayn Rand is a libertarian whose books stress
the need for individuals to be free of regulation and intervention by the government. Justice
Thomas requires his incoming law clerks to watch the movie version of the novel before they
begin to work for him. This book was said to have influenced his libertarian leanings and his
firm belief that the power of the federal government needs to be limited (Bates). In “Clarence
Thomas and Native Son” the author argues that “Wright and Rand capture Thomas’ openness to
sharp breaks with rule and precedent and readiness to rule in favor of those individuals and
corporations that challenge a social welfare state” (Bates). This is an interesting way to look at
Justice Thomas’ past and is a way in which some scholars have explained why he holds the
beliefs he does. Through his experience as an African-American he has developed hardness
against the government and its attempt to make up for slavery and the wrongs done through
affirmative action. He states that because of this program, his degree means nothing to the whites
that look at it. This argument, however, is very unpopular with the general African-American
public and many believe Justice Thomas has parted with those he represents.
Though Justice Scalia and Justice Thomas are said to represent the Originalist bloc on the
Supreme Court, they came to this position through very different routes. Their reasons for
holding the belief system they now do is hard to place, but it can be hypothesized that their
upbringing as youth and philosophical and religious beliefs led them to the textualist approach
they take today. The belief they share is that the text should be read literally and with originalist
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jurisprudence. When Justice Thomas was first appointed to the Supreme Court it was widely
believed that he would be the understudy of Scalia. It has become clear, however, that “Justice
Thomas is not simply Justice Antonin Scalia’s loyal apprentice, no matter how vociferously
some seek to establish and maintain this myth. Careful students of the Supreme Court have
become increasingly aware in recent years of the distinctions between Justice Thomas’s
jurisprudence and Justice Scalia’s” (Gerber pg. 193).
III. Supreme Court Cases in Which Justice Thomas and Justice Scalia Agree
Before delving into their differences, however, it is important to point out the judicial
philosophies they both agree or disagree with. This can be found by looking at cases in which
they come to the same conclusion. There are many cases where Scalia or Thomas writes the
opinion and the other joins or concurs in the opinion. Justice Thomas and Scalia can be found on
the same side if it is a situation where the majority finds justification in the “right to privacy”
found in the Bill of Rights. They also do not agree with any mentions of the “living constitution”
or any opinions hinting at an evolving state within the United States. A few notable cases in
which these Justices agree are Lawrence v. Texas, Roper v. Simmons, McCreary County v.
ACLU, Van Orden v. Perry and District of Columbia v. Heller.
Lawrence v. Texas (2003) was a case involving the right to privacy found in Griswold v.
Connecticut (1965). In this case, individuals Lawrence and Garner are two homosexuals who are
arrested for engaging in sodomy, an act that was in violation of Texas law. In a 6-3 decision, the
Supreme Court struck down the Sodomy Law in Texas. Lawrence was an important case because
the Court overruled Bowers v. Hardwick (1986), a case were the Supreme Court had upheld the
constitutionality of a Georgia sodomy law. The majority argued that the law was not right when
originally decided. Kennedy, the author of the majority opinion, held that intimate consensual
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sexual conduct was part of the liberty protected by substantive due process under the 14th
amendment.
Both Justice Thomas and Justice Scalia were on the dissenting side of this case. Scalia
wrote a dissenting opinion that was joined by Thomas and Rehnquist with Thomas writing his
own concurring opinion as well. In Scalia’s dissenting opinion he argued that the Court is not
respecting the precedent put forth in Bowers and stresses that if they do not respect this
precedent, then he wants them to rethink Roe v. Wade (1973). In the case of Roe the Court
concluded that a right to privacy under the due process clause of the Fourteenth Amendment
extends to a woman’s right to have an abortion. Scalia points to Griswold v. Connecticut; where
this “so-called ‘right to privacy’” was established by “pointing to the penumbras of
constitutional provisions” and he does not agree that this right exists (2003). This “right to
privacy” is also brought up in Justice Thomas’s own dissent. Thomas, in his dissent, argued that
the Texas sodomy law is “uncommonly silly” and that if he “were a member of the Texas
legislature, I would vote to repeal it” (2003). However, he stated that he cannot vote with the
majority because of their use of the “right to privacy”, which he, like Scalia, does not believe
exits. The term “uncommonly silly” was first used by Justice Stewart in the case of Griswold
when describing laws that forbid the use of contraceptives by anyone (1965). Both Justice
Thomas and Scalia align themselves on the dissent side of this opinion because they, as
originalists, do not agree with the conclusion by the Supreme Court in 1965 that there exists a
right to privacy. As Originalists, they argue that if the Framers of the Bill of Rights did not
explicitly state it, it is not a fundamental right protected by the Constitution.
Originalists are “kept from joining opinions that rely on legislative history or that expand
the words of the Constitution beyond what they meant to those who drafted and ratified it”
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(Rossum pg. 199). This is evident in the dissents written by Justice Thomas and Justice Scalia,
both of whom state their disagreement with the “right to privacy”. Originalists look at the direct
text and do not agree with creating a “fundamental right” by looking at other explicitly written
rights in the Constitution. Originalists believe that this practice will undermine the authority of
the Constitution altogether. In Lawrence, Justice Scalia also refers to the Court’s conclusion that
there is “an emerging awareness that liberty gives substantial protection to adult persons”.
However, he argues in opposition that “an ‘emerging awareness’ does not establish a
fundamental right (2003). As originalists, both Justice Thomas and Justice Scalia do not believe
that you can read a law more leniently because you know that it will be better received by a more
modern society. Justice Scalia writes in his book, A Matter of Interpretation, “the ‘living
constitution’ is a body of law that changes from age to age, in order to meet the needs of a
changing society” (Scalia pg. 38). Justice Scalia does not believe that a body of law should be
deemed able to “change from age to age” because that would create a sort of “judicial tyranny”
giving the Courts the right to take away rights as well as create them depending on the decision
they are making. Because the majority in Lawrence is citing the “emerging needs” of a society,
the Court is making a ruling according to an interpretive philosophy they, the Originalists, do not
agree with.
Another case where Justice Scalia and Justice Thomas wrote dissenting opinions arguing
against the “living constitution” philosophy is Roper v. Simmons (2005). Roper was a landmark
Supreme Court case in which the Court was deciding whether the Eighth Amendment’s “cruel
and unusual” punishment clause prohibits the execution of criminals who are under the age of
eighteen at the time of the crime. The Supreme Court, in a 5-4 decision, ruled that such
executions are unconstitutional. Kennedy writes the opinion for the Court and cites that the
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“evolving standards of decency” in America make the execution of juveniles unconstitutional.
Kennedy also cites the amount of states who still have the death penalty in place for perpetrators
under the age of 18 and concludes that the “national consensus against the death penalty for
juveniles is similar” and because many states within the United States have abolished the death
penalty for minors it is then unconstitutional (2005).
Justice Scalia cites his originalist beliefs in his dissenting opinion where he appears to be
appalled by the ruling of the Court. He references Alexander Hamilton in Federalist No. 78, in
which Hamilton assured New York that “the judiciary… has neither force nor will but merely
judgment”. Scalia argues, “what a mockery today’s opinion makes of Hamilton’s expectation”
(2005). Thomas joins in Scalia’s heated dissent where he argues that the Court is taking too
active of a role in making policy. Originalists disagree vehemently with what Justice Scalia calls
judicial activism and this is what he states is happening here. Originalists, such as Thomas and
Scalia, also disagree with the Court ever referencing other countries judicial decision-making as
evidence for their own opinion. Justice Kennedy, in his majority opinion, looks to “the laws of
other countries and to international authorities as instructive for its interpretation of the Eighth
Amendment” (2005). Scalia responds that, “the basic premise of the Courts argument- that
American law should conform to the laws of the rest of the world- ought to be rejected” (2005).
Justices Thomas and Scalia are on the same side in this opinion because, as Originalists, they
disagree with any allusion to foreign citations within United States Supreme Court opinions
because they, like their stance in the “penumbra” of privacy, believe it undermines the American
principles founded in the Constitution.
Another area in which you can find Justice Scalia and Justice Thomas in agreement is
cases involving the Establishment Clause of the Constitution. The cases where this is most
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notable is in the cases of McCreary County v. ACLU (2005) and Van Orden v. Perry (2005). In
these cases the Court is determining whether it is in violation of the Establishment Clause for
public property to display the Ten Commandments. In the case of McCreary County v. ACLU the
Supreme Court ruled in a 5-4 decision that the display of the Ten Commandments inside the
Courthouse was unconstitutional. The majority, led by Justice Souter, concluded that the purpose
had been to advance religion and that to an observer it would appear the government was
endorsing religion, which is in violation of the Establishment Clause. Scalia wrote the dissent
and was joined by Justices Rehnquist, Thomas and Kennedy (in part). In Scalia’s dissent he cites
many of his originalist beliefs on how the Establishment Clause is to be read when looking to
American history and the culture of the framers and the importance of religion in their life.
Thomas joins Scalia in his dissent that stresses more similarities in their foundation as
originalists, the need to look back at the founding of the Constitution to come to an accurate
conclusion as to the meaning of a provision of the Bill of Rights.
Justice Scalia begins by stating “the fact that the Founding Fathers believed devotedly
that there was a God and that the unalienable rights of man were rooted in Him is clearly evident
in their writings, from the Mayflower Compact to the Constitution itself” (2005). He then moves
on to cite the actions of many members of the founding fathers as evidence of their use of
religion in the public forum. He points to President Washington opening his Presidency with a
prayer as well as John Adams addressing his Massachusetts Militia; “our Constitution was made
only for a moral and religious people. It is wholly inadequate to the government of any other”
(2005). Justice Scalia continues his dissent against the majority’s conclusion that the display of
the Ten Commandments was moving to advance the religion. He cites James Madison and again
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stresses, “I have relied upon statements of Founders who occupied federal office, and spoke in at
least a quasi-official policy” (2005).
Another case that was heard at the same time as McCreary is the case of Van Orden v.
Perry (2005) where the plurality of the Court came to the opposite conclusion than in McCreary
by ruling that a display of a Ten Commandments monument on state capitol grounds did not
violate the Establishment Clause. This ruling was opposite of McCreary because the display was
outside on capitol grounds in contrast to being inside the Courthouse. It is obvious Justice
Thomas and Justice Scalia’s agreement as Originalists on the matter of the proper reading of the
Establishment Clause when looking at Thomas’ concurring opinion in Van Orden. The plurality
opinion was written by Justice Rehnquist and joined by Justices Scalia, Kennedy and Thomas.
Justice Thomas argues, “The Ten Commandments display at issue here is constitutional. In no
sense does Texas compel the petitioner” (2005). He exams the word, “compel” and concludes
that “if the Court would return to the views of the Framers” then the Court would not face as
many Establishment claims as it does today (2005). In these twin Ten Commandment cases it
becomes even more apparent the similarities in the beliefs of Justices Thomas and Scalia. Both
argue that in order to make accurate decisions regarding the Establishment Clause, the Court
needs to look at the framers of the Constitution. As originalists they believe historical material is
“not merely relevant to” but required in the search for textual meaning (Whittington pg. 179). By
using the acts of the first Presidents of the United States as well as many actions of the early
Supreme Court, Justice Thomas and Scalia call on examples from America’s founding to prove
their point that the current Supreme Court is making wrong decision regarding the true meaning
of the Establishment Clause.
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Another landmark case that found Justice Thomas and Justice Scalia in agreement was in
District of Columbia v. Heller (2008). In this case, the Supreme Court held that the Second
Amendment protects an individual’s right to possess a firearm for private use within the home in
federal enclaves. Justice Scalia wrote the opinion for the Court in the first Supreme Court case in
history to decide that the Second Amendment protects an individual’s right to bear and keep
arms for self-defense. The case originated when a lawsuit was brought in D.C. challenging the
Firearms Control Regulations Act of 1975. This Act restricted residents of D.C. from owning
handguns, semi-automatic firearms and semi-automatic firearms, but stated that guns owned by
police officers or guns registered before 1976 were allowed. Any guns kept at home, however,
must be unloaded and disassembled. The Court of Appeals had struck down provisions of the
Firearms Control Regulations Act as unconstitutional, and the Supreme Court followed by
striking out many remaining provisions as Justice Scalia solidified the position of the Court that
individuals who are not affiliated with any state militia can keep handguns for private use. This
opinion was written by Scalia and joined by Justices Roberts, Kennedy, Alito and Thomas.
Many saw Scalia’s majority opinion codifying an individual’s right to self-defense as a
“triumph of Originalism”. This is a significant case wherein Justice Thomas and Justice Scalia
are in the majority opinion, Justice Scalia using historical material to support his conclusion.
This is another example of the commonality between Thomas and Scalia; both rely on historical
evidence from the Founding period to support their opinion. In this case Justice Scalia rules that
there is a distinction between the ownership of machine guns and the ownership of handguns for
self-defense and private use. The distinction is that the militia at the time of the Second
Amendment’s ratification was any group of citizens who were able to be in the military service
and that they would bring the sorts of lawful weapons that they owned.
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Overall, by looking at cases such as Lawrence, Roper, McCreary, Van Orden and Heller,
it is clear that both Justice Thomas and Justice Scalia agree on many fronts when it comes to how
to read the Constitution in an Originalist way. Both Justices cite many historical examples to
support their opinions in their attempt to find the intention of the Founding fathers of the
Constitution. They agree that in order to find the intention of the Framers they can look at what
was happening in the late 18th century and look at the laws that were passed and the actions
immediately following the adoption of the Constitution. It is also apparent by looking at these
few cases that both Justices are vehemently opposed to the use of the word “evolving” or
“changing standards” to justify the conclusion of the Court. Both originalists believe that the
Constitution is not an evolving or “living” document, but a contract that does not change. In
cases in which the majority relies on foreign court’s actions or cites any new changes in society
these two Justices will be on the dissenting side of the opinion. In cases of the Establishment
Clause it is also evident that both Justices believe that the Framers’ intent was for a limited
government and that they were not advocating for a government devoid of any religion. They
come to this conclusion in many of their opinions by citing the actions of the early government
of the United States. On all of these fronts, Justice Thomas and Justice Scalia can be found in
agreement.
IV. The Differing Jurisprudence of Justice Thomas and Justice Scalia
There are, however, many times when these two justices do not agree as to the correct
way to rule on a case, or the best way to read a statute or a constitutional precedent. The subject
of the cases in which these Justices disagree vary but they center on a few dividing lines. Justice
Scalia is much more likely to respect stare decisis than is Justice Thomas. A source of dispute
between them is where to look in history to find support in the current case. Justice Thomas will
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always look back and refer to the founding era of the United States to rule if a law is
constitutional or not, Justice Scalia is much more likely to look to the precedent attached to a
case and not urge a reassessment. A section of the Constitution that they have disagreed upon as
well is the Commerce Clause. Justice Thomas adamantly believes the Court does not read the
Commerce Clause as the Framers intended it. Many times Scalia agrees with Thomas that the
Clause has become too broad, however, in a few cases he is in support of a broader Commerce
Clause reading.
Another distinction noted by Rossum in Antonin Scalia’s Jurisprudence is that ‘Scalia’s
voting is most closely aligned with that of Justice Thomas- despite the fact that Scalia, operating
on logical positivist assumption, rejects Thomas’ natural-rights premises” (Rossum pg. 158).
Justice Thomas, unlike Justice Scalia, believes that you can look to the Declaration of
Independence to see the rights intended for the citizens of the United States. Justice Scalia argues
that rights only exist when they are written in the Constitution or added as an amendment. There
are other cases when these Justices simply ask different questions within a case and this leads to
differing conclusions. The remainder of the thesis will center on how these two originalists, who
are looking to find the exact intention and meaning within the Constitution set forth by the
framers, can come to different conclusions in a case? How can two individuals, wanting to look
directly at the text for it’s meaning, differ so radically in some of their beliefs?
a. In Some Instances, the Justices ask Different Questions of a Case
Bradley Jacob, author of “Will The Real Constitutional Originalist Please Stand Up”
argues, “even those who agree that the proper interpretive task is not to let the document’s
meaning “live” and evolve…may not always agree on the content of that original meaning”
(Jacob pg. 630). Jacob is describing the situation that occurred in Hamdi v. Rumsfeld (2004) and
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the differing opinions of Justice Thomas and Justice Scalia. This case is a good example of one
of the ways they can come to different conclusions in a case, if they ask unique questions. In the
case of Hamdi v. Rumsfeld the majority concluded that Yaser Hamdi, a U.S. citizen captured as
an enemy combatant, cannot be detained indefinitely but must have the ability to challenge his
detainment. The case did not have a single opinion that had a majority of justices concurring, but
all justices, in some form, agreed that a U.S. citizen couldn’t be denied habeas corpus. Justice
O’Connor wrote the opinion for the Court and was joined by Justices Rehnquist, Breyer and
Kennedy. Justice Scalia’s dissenting opinion argued for the most restrictions on the Executive
Office’s power of detention. Justice Thomas was the lone dissenting opinion, he did not agree
that the detainee deserved due process rights but argued that the Executive Branch had very
broad powers and could restrict even a U.S. citizen from habeas corpus. This disagreement
between the two originalist judges is an interesting phenomenon.
Justice Scalia, in his dissent, uses Originalist understanding of the Constitution to argue
the Hamdi should be entitled to the full protection of a U.S. criminal defendant. He cited Laws of
England from 1765 that promised citizens detained as a prisoner the right of due process. He also
states that “these words were well known to the Founders; Hamilton quotes this very passage in
the Federalist No. 84” (2004). Justice Scalia is concentrating on the question of “whether there is
a different, special procedure for the imprisonment of a citizen wrongly accused of wrongdoing
by aiding the enemy in wartime” (2004). He then explores what the original meaning of the Bill
of Rights would lead us to believe about what the acceptable practice would be in the Founding
era when it came to someone in Hamdi’s position. Justice Scalia cites Court decisions after the
War of 1812 to create a parallel with the situation of Hamdi as well as the situation of citizens
during the era of the Civil War and President Lincoln’s work to suspend habeas corpus without
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congressional authorization. Scalia’s conclusion is that “the proposition that the Executive lacks
indefinite wartime detention authority over citizens is consistent with the Founder’s general
mistrust of military power permanently at the Executive’s disposal” (2004).
Justice Thomas, who throughout his opinion cites the works of the Framers and the
historical understanding of the Framer’s view of Executive power, takes the opposite position
from that of Justice Scalia. For Thomas, the key question is whether the President has the power,
according to the war powers under the Constitution during a time of military conflict, to
authorize the incarceration of a citizen in Hamdi’s position. Thomas, like Scalia, cites the
Founders and the original meaning of the Constitutional text. Like Justice Scalia, he also cites
the Federalist papers in order to provide historical evidence. He argues, “See also The Federalist
Nos. 34 and 41. The Founders intended the President to have primary responsibility- along with
the necessary power- to protect the national security and to conduct the Nation’s foreign
relations” (2004). Justice Thomas concludes that the President has extremely broad wartime
powers. He cites a case in 1795 in which the Court sided with the President’s broad powers to
detain, if necessary, citizens indefinitely. He then argues, “almost 140 years later…the Court
explained that the Due Process Clause ‘lays down no categorical imperative’” (2004).
This is an important case to examine when comparing Justice Thomas and Justice Scalia
as Originalist judges because it is a case in which they distinctly disagree on the outcome of the
case while both have Originalist underpinnings to their arguments. Both cite the Founders as
well as look to the Federalist Papers. Both Originalists are attempting to find the original
meaning of the text to determine who is correct when determining if a citizen in Hamdi’s
position deserves habeas corpus. Justice Thomas disagrees strongly, however, with Scalia,
stating that he does not “believe that Justice Scalia’s evidence leads to the necessary ‘clear
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conviction that [the detention is] in conflict with the Constitution or laws of Congress
constitutionally enacted’” (2004). In this case, two leading originalists come to opposite
conclusions on what the Framers would say about the incarceration of U.S. citizens in time of
war. This case is an example of how Justice Scalia and Justice Thomas can disagree. In some
cases they ask different questions of a case, and even if they are both referencing the Framers of
the United States, they can still come to differing conclusions.
Another important case to consider when examining the differences between Justice
Thomas and Justice Scalia is the case of Gonzales v. Raich (2005). This is a case, which finds
Justice Scalia concurring with the majority opinion and Justice Thomas writing a dissent. This
case centers on the power struggle between state and federal power and the question of how to
best apply the Commerce Clause, and if the Clause even applies to the growing of marijuana for
medicinal use. In this case the majority concludes that Congress has the power to ban marijuana
for non-medical uses, and this leads the Court to conclude that banning growing marijuana for
medicinal use is a way to stop others from gaining access to the drug. The majority opinion is
written by Stevens and is joined by Kennedy, Souter, Ginsburg, and Breyer with a concurrence
by Justice Scalia.
Justice Scalia in his separate concurrence writes that he voted for limits on the Commerce
Clause in previous cases but that his reading of the Necessary and Proper Clause causes him to
vote the way he does. Justice Thomas writes a dissent where he states “certainly no evidence
from the founding suggests that “commerce” included the mere possession of a good or some
purely personal activity that did not involve trade or exchange for value” (2005). Justice Thomas
cites founding principles from the beginning of the United States in order to support his
conclusion that Raich should be constitutionally able to grow medical marijuana. Thomas looks
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to his dictionaries and historical texts to find support; “throughout founding-era dictionaries,
Madison’s notes from the Constitutional Convention, the Federalist Papers and the ratification
debates, the term commerce”, he writes, meant trade or exchange, not any activity that could
somehow be construed to be commerce. Justice Thomas finds his conclusions by looking at the
framers and his perception of their understanding of the Commerce Clause. Justice Scalia goes a
different route in a concurring opinion with no mention of the founders but to past cases and the
“pattern” put forth by the Court in their past decisions. This is an important part to note in this
analysis of how these two Justices come to different conclusions in this case. Justice Scalia
appears to deviate from his Originalist stances in order to cite past cases and precedent and not
only Constitutional history.
Eric Claeys conducts an analysis of the Gonzales decision in his article “Raich And
Judicial Conservatism at the Close of the Rehnquist Court”. Claeys writes that this case is a
perfect example of the struggle Justice Scalia and Justice Thomas have to both fulfill their role as
Originalists. Claeys writes that Scalia “sparred with Justice Thomas about how to apply the
principles of constitutional interpretation they are supposed to share” (Claeys pg. 793). Claeys
writes that though both Justices are committed to Originalism there are tensions between
Originalism and minimalism. “Justice Thomas and Justice Scalia both favor Originalism and
judicial minimalism, but Justice Thomas stresses the former over the latter, and Justice Scalia the
latter over the former” (Claeys pg. 793). It is evident in this case that Justice Scalia is siding with
minimalism because he is voting with a majority that is supporting a broad reading of the
Commerce Clause. In most cases, Scalia is opposed to a broad reading of the Commerce Clause
but in this case instead of advocating for change, he follows his beliefs of judicial restraint and
votes with precedent. This is an example of minimalism because Justice Scalia wants Justices to
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do as little as possible. Justice Thomas is willing to question the current reading of the
Commerce Clause and recommend a return to a narrower reading. Justice Scalia is willing to side
with precedent even if it goes against the Constitution’s original meaning. Justice Scalia argues
for restraint in judicial discretion. In most cases this will put him beside Justice Thomas and the
Originalists but in this case, when citing the current precedent of reading the Commerce Clause it
became apparent Scalia would rather have minimalism than Originalism.
In Originalism: The Lesser Evil Scalia admitted he was “ready to “adulterate it
[Originalism] with the doctrine of stare decisis” (Claeys pg. 800). The Gonzales case is
important because it is a case in which Justice Scalia is concurring with the majority that is citing
a precedent he does not agree with. Justice Thomas, on the other hand, writes a dissent in which
it is very apparent that he is much more opposed to encroachment of the federal government on
state sovereignty. Some analysts cite the Gonzales case as an example of why Justice Scalia is a
“faint-hearted Originalist”, because he was siding with the Justices who argue for an “evolving”
Constitution and refused to confront and refute the originalist analysis that Justice Thomas puts
forth. This is an important case to scrutinize when looking at the differences between Justice
Thomas and Justice Scalia because it is further evidence that they do differ on the way that they
implement their judicial beliefs. Both may be looking for Originalist meaning in the text but
Justice Scalia is much more likely to not rule for that reading because it would involve major
changes to past precedents put forth by the Court.
b. Justice Scalia Minimalism v. Justice Thomas Questioning of Precedent
How can these Justices come to different conclusions if they are both advocates of
looking at the direct text? The question of precedent is a very important subject when looking at
how these two Justices can differ in the way in which they rule. One of the major reasons Scalia
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and Thomas can disagree in some cases is because of their differing understandings of the force
of precedent.
The following cases are those in which Justice Thomas is either in a separate concurring
or dissenting opinion than Justice Scalia because he is stressing the need to change a precedent.
In these cases, Justice Scalia is not found forming the “bloc” that many cite when looking at
Scalia and Thomas. According to Justice Scalia, "Clarence Thomas doesn't believe in stare
decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right. I
would not do that” (Foskett). It is important to dissect cases in which Thomas and Scalia differ to
see if this statement by Scalia proves correct. Looking at cases such as U.S. v. Lopez give a good
example of Justice Scalia and Thomas agreeing on an outcome but with Justice Thomas
separating himself from Scalia in order to promote change to a precedent.
Lopez was the first Supreme Court case since the New Deal to determine that Congress
had gone too far in exercising its powers under the Commerce Clause. In the majority opinion,
written by Chief Justice Rehnquist, the Court ruled that Alfonso Lopez, a student who had been
caught in his High School with a weapon, could not be charged in violation of the federal GunFree School Zones Act of 1990. The Court concluded that it would be a very slippery slope in
which the Federal Government had too much power if they were allowed to regulate almost any
activity regardless of its connection to “commerce”. Rehnquist states in his opinion that if they
ruled in favor of the government they would be “hard pressed to posit any activity by an
individual that Congress is without power to regulate” (1995).
In Justice Thomas’s concurrence in U.S. v. Lopez (1995) he argues, “in future cases, we
ought to temper our commerce clause jurisprudence…more faithful to the original
understanding” (1995). Justice Thomas, though he agreed with the majority (which was joined
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by Justice Scalia), wrote a separate concurrence in order to stress that the Court needs to narrow
the Commerce Clause reading they have had in the past. In this case “Thomas made one of his
most powerful appeals to original meaning textualism…Courts entire Commerce Clause
jurisprudence since the New Deal has strayed” from the Original meaning of the text (Jacob pg.
609). In his opinion Justice Thomas refers to the Founders and how the word “commerce” was
used and discussed at the time of the writing and ratification of the Constitution. This concurring
opinion is important when looking at the relation between Justice Thomas and Justice Scalia
because of Scalia’s failure to join Thomas’ concurrence. Scholars who have analyzed this case
and these two justices argue that Justice Thomas “disturbed all Court precedent that conferred on
Congress power to regulate interior trade or the productive activities that generate good or
service for trade” (Claeys pg. 801). Claeys argues that Scalia did not sign on to Thomas’s
concurrence because he is not as committed to the original reading of the text as he is to past
precedent. In the case of McIntyre v. Ohio Elections Commission (1995) Justice Thomas states,
“while, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the
states, I believe the historical evidence from the framing outweighs recent tradition” (2005).
Another case in which Thomas and Scalia disagree on the appropriate reading of the
Commerce Clause is the case of Printz v. U.S (2007). In this case, Scalia writes the majority
opinion and Justice Thomas writes a separate concurrence. Justice Scalia, the majority opinion
writer, rules that provisions of the Brady Handgun Violence Prevention Act are unconstitutional.
This Act worked to establish a national background check system individuals would be run
through in order to own a handgun with the intent of preventing the sale of a firearm to a
forbidden person. This is an interesting case when looking at the jurisprudence of Justice Scalia
and Justice Thomas because Scalia does conduct textual analysis but some scholars have called it
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“lesser” textual analysis. Justice Scalia refers to the Founders who wrote the Constitution and
argues that the Constitution was designed to allow federal regulation of interstate dealings but
not internal matters that are strictly within the state. This reasoning leads Scalia to conclude that
it would be unconstitutional for the Act to compel a state official to administer a federal
program.
It is obvious within Justice Thomas’ concurrence that he does not believe that Justice
Scalia went far enough in limiting the expansion of federal power in the future. Thomas proposes
deciding the case of Printz on either of two separate grounds, lack of power under the Commerce
Clause, or by relying on Justice O’Connor’s Tenth amendment reading from a past case. Justice
Thomas’ concurring opinion is another excellent example of the differences between the two
originalist judges. Both look to the Founders to find the reasons this Act is unconstitutional but
Justice Scalia leaves the question much more open than Thomas wants. According to Claeys,
“Scalia sought doctrine that would leave courts to enforce clear and manageable rules. Justice
Thomas’ concurrence suggested that he would at least consider federalism theories that might
force the Court to butt heads with Congress” (Claeys pg. 809). This case is another example of
the tension between minimalism and Originalism. In this case, Scalia sides with minimalism,
whereas Justice Thomas calls for a majority opinion that would bring Commerce Clause
jurisprudence closer to what he believes the Founders had intended. The belief in judicial
minimalism is the belief that “judges have policy-making discretion in the course of
interpretation, but then seek to minimize that discretion as much as possible” (Clays pg. 793).
This is a good case to analyze when looking further at the contrast between the Originalism
jurisprudence of Scalia and that of Thomas. Justice Thomas, in this case, continues to “believe
that we must temper our Commerce Clause jurisprudence and return to an interpretation better
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rooted in the Clause’s original meaning” (2007). Justice Scalia, in contrast, declared this specific
Act unconstitutional but did not make a move to limit federal power even though he has been on
record for supporting a narrower Commerce Clause, much like what Justice Thomas is
supporting in his opinion. Minimalism trumps the move back to “original meaning” in this case
for Scalia, another important note when looking at how these two Justices differ in their opinion.
Most members of the public who refer to themselves as Originalists argue that looking to
the Framers of the Constitution and the text itself is the best way to make the “correct” judicial
decision. But even when vehemently arguing for a return to a narrow reading of the text, most do
not argue for the reexamination of some of the first precedents set by the Supreme Court of the
United States. In the case of Eastern Enterprises v. Apfel (1998) Justice Thomas does just this. In
his concurring opinion he signals a willingness to reconsider the case of Calder v. Bull, a case
decided in 1798. In the case of Eastern Enterprises, the plurality opinion of the Court finds the
Coal Act passed by Congress, which required coal operators to pay pension for past employees,
unconstitutional. Justice O’Connor, author of the opinion, argues that the Coal Act is an
unconstitutional regulatory taking of property even with compensation, which required the Act to
be invalidated.
The importance of this case, however, is Thomas’ short concurring opinion. In his
opinion he writes that the reading of the Ex Post Facto Clause of the Constitution by the Court
should be under review. He also concludes “in an appropriate case, therefore, I would be willing
to reconsider Calder and its progeny” to the reading of the Ex Post Facto Clause. The conclusion
of Calder was that Ex Post Facto only applies to criminal cases; Justice Thomas argues that it
should not be so limited. This is a notable opinion because though Justice Scalia joins the
plurality opinion he does not join Thomas’ concurring opinion. This opinion is unique because it
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shows that Justice Thomas has committed himself to what he believes is the original way to read
the Constitution and he is willing to overturn very old precedent to accomplish these aims. This
case again shows Justice Scalia not signing on to this version of Originalism.
c. Justice Thomas the Libertarian vs. Justice Scalia the Social Conservative
Besides appearing to hold different views of precedent, some also point out that Justice
Thomas is a libertarian whereas Justice Scalia is more of a social conservative. Those who
adhere to the political philosophy of libertarianism uphold individual liberty and freedom. Social
conservatism is the belief that the government’s role is to protect and encourage traditional
values and behaviors. Scholars analyze times that Thomas’ libertarian streak clashes with the
social conservative views of Justice Scalia. Examples of this lie in the differing opinions of
Justice Scalia and Justice Thomas in the First Amendment case of McIntyre v. Ohio Elections
Commission (1995) as well as the separate dissenting opinions of Thomas and Scalia in Kelo v.
City of new London (2005). In the McIntyre case, the majority ruled that an Ohio statute that
outlawed anonymous leaflets was unconstitutional. Justice Thomas writes a concurring opinion
while Justice Scalia dissents. Justice Thomas concurs with the opinion but writes separately
because he does not agree with Stevens’ taking into consideration the “expressive value” of the
anonymous speech to the speaker and society (1995). Thomas wants the majority to conclude
that there is an absolute right to anonymous leafleting, not just because the society agrees with it
right now. In his concurring opinion Justice Thomas refers to The Federalist Papers written by
Hamilton under the pseudonym “Publius” as an example of anonymous leafleting happening at
the time of the Constitution’s framing.
Despite his originalist argument and mention of the framers and the origins of the
Constitution, Justice Scalia is not on the concurring side of the opinion, but a part of the dissent.
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He begins his dissent by admitting “the question posed by the present case is not the easiest sort
to answer for those who adhere to the Court’s (and society’s) traditional view that the
Constitution bears its original meaning and is unchanging” (1995). His dissent, like Thomas’
concurrence, cites United States founding history extensively as well as the time of
Constitutional framing. But his dissent is different than Justice Thomas’ because he cites
something other than original meaning, “the widespread and longstanding traditions of our
people” (1995). This is interesting to note because when looking at the expressed beliefs of
Justice Thomas and Scalia they do not agree with looking at the “evolving” society when making
decisions on the Court. In this case these two Justices fall on the opposite sides because Justice
Scalia writes that he would have agreed with Thomas had it not been that many states had been
outlawing anonymous leafleting for years. This is a fascinating twist to the analysis of this
“Originalist bloc” made up of these two Justices. When one justice refers to a changing standard
of society, the other disagrees passionately.
This is also an example of the tension between Thomas’ liberal Originalism and Scalia’s
social conservative Originalism. This case is cited as such because Justice Thomas wants the
government to be more hands-off when it comes to the right to free speech whereas Justice
Scalia is advocating for states rights; their right to make their own laws. Justice Scalia makes a
conservative argument when supporting that certain public values are promoted if there are
limitations on free speech whereas Thomas does not support any limitations if they will in any
way limit an individual’s right to free speech. Justice Thomas, following libertarian beliefs, aims
to protect individual liberty rather than “upholding the authority of government to prevent social
disruption” (Sandefur pg. 554). Justice Scalia agrees that some limitations may be acceptable,
whereas Thomas argues vehemently that there are no exceptions. This is another example of
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Justice Thomas’ absolutist version of Originalism, that people have the absolute right to free
speech, Scalia is more of a moderate if there are social values to be found in these limitations
they may be justified. This is a disparity between Justice Thomas and Justice Scalia that needs to
be noted. O’Neil argues that the McIntyre case is a time when “Scalia specifically disagreed with
Thomas’ originalist concurrence” and the fact that “the Court originalists did not march in
lockstep” is an interesting occurrence to note (O’Neil pg. 208).
Kelo v. City of New London is another case scholars cite when arguing that sometimes
Justice Scalia and Thomas part ways when it comes to a question of a libertarian or conservative
reading of the text. In this case both Thomas and Scalia are on the dissenting side of the opinion.
Justice Thomas, however, signs on to the dissent but also provides his own, which Justice Scalia
does not sign on to. This case is cited in Randy Barnett’s critique of Justice Scalia as a
representative of Originalism. Barnett calls him “faint-hearted” and cites this case as an example
because he states that in Kelo, Scalia fails to endorse the originalist justification for a result he
agrees with (Barnett). But when reading the dissenting opinion of Justice Thomas it become
obvious that these two justices disagree not because of the justification given but because of a
differing opinion on the best way to read the “public use” part of the takings clause. Kelo
centered around the question of whether the government can constitutionally claim homes and
other private property for “public use” even if the government itself will not be using the
property. The majority opinion, written by Justice Stevens, concludes that yes, the city may
claim private property under the Fifth Amendment as long as the development intends to benefit
the community. The dissenters, made up of Justices O’Connor, Thomas, Scalia and Rehnquist,
were shocked by the majority’s conclusion and wrote scathing dissents from the opinion. In
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Justice O’Connor’s dissent, which Justice Scalia joins, she argues that the “Founders could not
have intended so perverse a result” (2005).
O’Connor’s dissent argues against this “reverse Robin Hood” conclusion that would
allow the government to take property for other private parties. The dissent counters the majority
opinion by stating that “public use” must mean a public project not an indirect land grab by
investors. The majority, however, cites the evolution of the term “public use” to the term “public
purpose.” Justice Stevens justifies that “public purpose” is a “broader and more natural
interpretation of public use” (2005). In this case Originalists Scalia and Thomas agree that the
framers of the Constitution would not have wanted the takings clause to be read so broadly. But
Justice Thomas writes a dissent that goes further than O’Connor’s dissent that Scalia joined.
Justice O’Connor’s definition of public use could technically include private ownership such as
taking land for the creation of a privately owned hospital. Justice Thomas, in his dissent where
he cites the meaning of public use at the time of the framing as well as other citations to early
Takings Clause jurisdiction, argues that any plan to take property from one private party in order
to give it to another violates “public use” under eminent domain.
The fact that Justice Scalia does not sign on to Justice Thomas’ dissent is important. This
signals that he does not agree with the approach that Thomas takes, which is to embrace a full
limitation on the government from taking private property not exclusively for public use. This
could be a reason that some scholars cite this case as an example of Justice Scalia, the
conservative, vs. Justice Thomas the libertarian. A conservative would most likely leave some
room for interpretation of the takings clause that would possibly allow the government to transfer
property from one private owner to another. A libertarian, however, would make much of the
argument that Justice Thomas does. The government needs to be limited extensively and not
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given the power to take property for “public purpose”. Liberal Originalism supports the
Jeffersonian principles of individual liberty expressed in the Declaration of Independence.
Again, as in McIntyre, an individual has the absolute free right to not have their property taken
from a private entity, Justice Scalia sides with O’Connor that though it should not happen, there
are specific times when it may be allowed. This is another example of Justice Thomas, the
absolutist and libertarian, in opposition to Scalia’s conservative Originalism. For this reason,
many scholars cite these differing social beliefs as reasons that these two Justices disagree on
some constitutional reading questions. Outside parties, however, have assigned these social
beliefs to the Justices; Justice Scalia and Thomas have not confirmed them themselves.
A case that is interesting to note is the case of U.S. v. Bajakajian (1998). In this case
Justice Thomas writes the majority opinion while Justice Scalia joins the dissenters. This case is
notable because in this case Justice Thomas parts from the conservative bloc of the Court to vote
with Justices Stevens, Souter, Ginsburg and Breyer, those seen as members of the liberal bloc.
This case is the only time in history that the Supreme Court has held that a fine imposed on an
individual was in violation of the Excessive Fines Clause of the Eighth Amendment. Hosep
Bajakajian had attempted to leave the United States with $357,144, which he failed to report to
the United States customs. The government required that he forfeit the entirety of the money.
The interesting part of the case is that all of the Justices agreed that if a fine is grossly
disproportionate to the offense then it is excessive. The case, however, was a divided court of 5-4
in the end.
This case is beneficial to look at when comparing Justice Thomas and Justice Scalia
because both Justices agreed that a fine can be disproportionate, but Justice Scalia does not agree
on how to apply that general standard to the facts of the Bajakajian case. This is an example of
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both justices agreeing on the reading of the Constitution and the fact that a fine can be too
excessive but they do not agree on how to apply it to the case before them. In this case Thomas
and the majority, held that a “punitive” forfeiture violates the Excessive Fines Clause of the
Eighth Amendment if it is grossly disproportional to the offense it is designed to punish. The
dissenters, which Justice Scalia joined, accused the majority of not showing deference to the
judgment of Congress that the crime of failing to report money leaving the country is a serious
one. David Smith, in his article examining the Bajakajian case writes that Justice Thomas
breaking from the conservative ranks was not very surprising in this case. He writes that Thomas
“has repeatedly expressed his strong misgivings about the government’s overzealous pursuit of
harsh forfeitures” but had never voted against one because he had not had a good reason as to
why it was unconstitutional” (Smith). Thomas argues that the Constitutional provision has been
breached and that the government has taken their right to fine too far. This case is an example of
Thomas’s belief that the Constitution is meant to limit the government and that the modern era
has allowed the Government too much leniency in exercising its power. This is another case in
which it appears that Justice Thomas opposes government power more fervently than Justice
Scalia. Justice Scalia is protecting Congress’s right to apply the fine because it promotes the
social value to prevent drug use. Justice Thomas, as a libertarian, argues that if taking the entire
money amount being taken out of the country is not excessive than what is excessive?
Libertarians are also known for not being in support of Congress’s role in the drug war. Also to
be noted is that the application of the Originalist theory is sometimes a reason for the disparity
between the justices. They both agreed in this case on the basic fact that the fine is extremely
high, but Justice Scalia did not agree with Justice Thomas that the method he put forth was the
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best. This is important because these Originalist justices are seen as a solid force, which always
agrees, but this case is another example proving that this is not always true.
d. Differing Views on the Declaration of Independence and Natural Rights
One of the largest differences in jurisprudence between Justice Thomas and Justice
Scalia, besides precedent and the possible social differences that guide them to differing
conclusions, is the way in which they view the role of natural rights and their application to
Supreme Court decisions. They “disagree about whether Originalism is limited to an
interpretation of the Constitution’s language only or whether the political- philosophical context
of the Constitution’s framing should factor into the analysis” (Sandefur pg. 553). Timothy
Sandefur argues that “Scalia’s greater reliance on stare decisis is not the only or even the most
interesting source of dispute between the Justices, their differences center largely on their
different views of the proper role of natural rights in an originalist interpretation”(Sandefur pg.
553). Justice Thomas has expressed his belief that “American politics and the American
Constitution are unintelligible without the Declaration of Independence” and the expressed
beliefs within it that there are certain un-enumerated rights endowed by “our Creator” (Epstein).
Justice Scalia does not reject the doctrine of natural rights but “believes that natural rights are
political concepts that should be relied upon by political branches not by Courts” (Sandefur pg.
553). Justice Scalia has argued that if the Court is to protect a right that you believe exists then a
law needs to be enacted. He has made it apparent that he does not believe in justifying a ruling
based upon unwritten rights. This difference in approach to natural rights in apparent in the case
of Troxel v. Granville (2000). In this case the Supreme Court strikes down a Washington State
law that allowed any third party to petition the state court for child visitation rights against the
wishes of the parent. This case was brought by grandparents of two young girls who petitioned
38
for the right to visit the daughters of their son who had died. The mother objected to the amount
of time the grandparents sought to spend with the girls. The Supreme Court ruled that the
Fourteenth Amendment protects the fundamental right of parents to make decisions concerning
their children.
Justice Thomas concurred with the majority and its use of this fundamental right as the
basis of their decision. Thomas hints that un-enumerated parental rights should be protected
when he states, “neither party has argued that our substantive due process cases were wrongly
decided and that the original understanding of the Due Process Clause precludes judicial
enforcement of un-enumerated rights under that constitutional provision” (2000). This case is a
perfect example of the differences between the two Justices and their willingness to apply natural
rights to their court opinions. This case is also an explicit example of Justice Scalia’s
disinclination to use the Declaration of Independence as a source of Constitutional construction.
In his dissenting opinion he argues, “the Declaration of Independence, however, is not a legal
prescription conferring powers upon the courts” (2000). Justice Scalia expresses his agreement
with the conclusion the Court reaches but that he does not agree with their use of “what is (in my
view) that un-enumerated right” (2000).
Thomas Standefur argues, “on matter of un-enumerated rights, federalism, and the nature
of Originalism, Justice Thomas’ liberal Originalism differs significantly from Scalia’s
conservative Originalism” (Sandefur pg. 554). Because Justice Thomas is looking to natural
rights referred to in the Declaration of Independence as a source of Constitutional Interpretation,
and Justice Scalia believes justices can only support their opinion with an enumerated right,
Thomas continues to be referred to as the more liberal justice of the two. Some scholars argue
that Thomas’s natural rights approach is far truer to the Constitution as a natural right document.
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He is seen as a “liberal originalist”, however, because his “aim is more to the protection of
individual liberty rather than upholding the authority of the government to prevent social
disruption” (Sandefur pg. 560). Both justices are looking to the Constitution and the framing of
the document for the justification for their opinions but they disagree about what documents
from the framing can be applied and used. This is one of the most interesting examples of how
two judges committed to the same textual answer to a Constitutional inquiry can come to very
different conclusions and end up on opposite sides of an opinion. Troxel is a good example of
this. Both Scalia and Thomas agree on the conclusion, but Scalia does not believe that you can
refer to the Declaration of Independence and “fundamental rights” not specifically expressed in
the Constitution. Scalia says Courts can only protect rights that are specifically mentioned, not
endowed by “our Creator”. For this reason, Justice Thomas is in the majority and Justice Scalia
is in the dissent.
V. Conclusion
Scholars do admit, “There are disputes as to the meaning of Originalism itself (Sandefur
pg. 555). There are distinct differences in the Originalist jurisprudence of Justice Thomas and
Justice Scalia. Both have expressed their following of the philosophy of “Originalism…the
original meaning of the text-applies to present circumstances that should govern judicial
interpretation of statutes and the Constitution” (Scalia pg. vii). Many times they do agree as to
the way to rule on the cases that come before them. As seen in the Supreme Court cases from
above both of these Justices disagree with the use of foreign country’s courts jurisprudence as
justification for a majority opinion, as in the case of Roper. If there is a mention of the practice
of a different country, these Justices will be on the dissenting side together. Both also are
adamantly against the use of the terms “evolving” Constitution or “changing society” as reasons
40
for a Court decision. If the majority concludes a decision based on the needs of a changing
America or on “penumbras” found in the Constitution, both Justices will be found together in the
opposition. For these reasons, Justices Thomas and Scalia are many times found on the same side
of the bench. The voting alignment in non-anonymous cases finds Justice Thomas and Scalia
agreeing 75% of the time. When looking at the number of cases Thomas and Scalia join the
majority; Thomas joins 57.8% of the time, Scalia 56.7% of the time. Ralph Rossum concludes
that Scalia has come to this percentage as a “direct result of his textualism, which keeps him
from joining opinions that rely on legislative history or that expanded the words of the
Constitution beyond what they meant to those who drafter and ratified it” (Rommus pg. 199).
This way of voting in cases is consistent with both Justices. Both are attempting to decipher what
it is the framers were intending with the words they used in the Constitution.
However, despite voting in alignment on many cases, Justices Thomas and Scalia “did
not understand or practice Originalism in precisely that same way” (O’Neil pg. 210). Both
Justices Thomas and Scalia are looking to find the Original meaning of the text but it is not
always true that they come to the same conclusion. As can be seen from the cases cited above
there are many differences in jurisprudence that keep Justice Thomas and Justice Scalia from
agreeing 100% of the time. Justice Thomas is much more likely than Justice Scalia to be willing
to overturn Court precedent to get back to what he believes to be the original meaning of the text
and the correct way to rule in a certain case. Justice Scalia values judicial minimalism as more of
a priority than overturning precedent in order to get back to an original meaning he may even
agree with. For this reason, there are many cases in which Justice Scalia will not be found
joining Justice Thomas’s concurrences or dissenting opinions because Thomas is calling for
much more dramatic action than Justice Scalia agrees with.
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Another substantial reason that these two Originalists fail to come to the same conclusion
on all of the cases that come before them is because they do not agree about the use of natural
rights when making decisions. Justice Thomas is much more likely to cite the Declaration of
Independence as a source of justification for a decision while Justice Scalia does not agree that it
is an adequate source of inquiry. Another reason that these two justices are not always on the
same side is because of a simple difference in the reading of the question being asked the Court
or simply when they look to different sources when making their decisions. For all of the reasons
listed above these two justices do not always agree in every case that comes before them. The
cases referenced above are only a few of the cases in which the jurisprudential differences of the
two justices are very apparent.
When looking at the differences mentioned above between these two Justices, it is clear
that it is a very difficult challenge to attempt to find the original meaning of the Constitution.
Also, this is only the analysis of two Supreme Court justices; there are many more judges on
Courts throughout America as well as members of the public who are considered to be
Originalists. Originalism is a difficult interpretive method to uphold because it is hard to agree
on what the sole original meaning is. This is true for interpretive methods as a whole. No one
would tell you that they are making decision without basing any of their reasoning on the
Constitution of the United States. Even those who subscribe to the “living Constitution” would
tell you that they are looking to the text to find the conclusion to the case before them. For this
reason, interpreting the Constitution with the attempt to make the “correct” decision is difficult.
For this reason, it is not surprising that when comparing two justices who agree as to how to best
interpret the text, it becomes obvious that they do not come to the same conclusions every time.
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But even with an inquiry into why it is that these two Justices can disagree, it is obvious
why it is that they are seen as a solid block to most of the public. When looking at the Court
today these two are trying their best to find the textual answer to whatever question is asked. And
many times, because some of the Court’s members are followers of a more “living” constitution,
these two are found side by side on many decisions. Justice Scalia is the more expressive of the
two Justices by far. He has written many articles and one book as well as given many speeches
about his method of interpreting the Constitution and attempting to convince people that it is the
best way to do so. Justice Thomas is much less likely to speak about his philosophy on voting.
He speaks of natural rights and original meaning in what interviews and articles he has been a
part of but he is the much more aloof of the two. In the end however, many members of the
public still look at them as the “Originalist bloc” on the Supreme Court. And until more people
look into their individual jurisprudence and personal history this is the legacy that will stay with
these two Justices for the many years to come.
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