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01/31/2017

Elizabeth Price Foley on Scalia's Replacement
Michael Ramsey

In the New York Times, Elizabeth Price Foley (Florida International): The Court Needs Another Clarence Thomas, Not a Scalia.  From the introduction:

Many conservatives argue that a jurist who replicates Justice Scalia’s approach to law should fill the vacancy. Mr. Trump appears to agree, having vowed to nominate federal judges “in the mold of Justice Scalia.”

While Justice Scalia was a brilliant and ardent defender of conservatism, achieving a restoration of the original meaning of the Constitution — particularly its separation of powers — could be more quickly and effectively achieved by a nominee whose approach is more aligned with that of Justice Clarence Thomas.

The demeanors of the two justices could not have been more divergent. Justice Scalia was a firebrand known for opinions that were eloquent but often acerbic. Justice Thomas’s quieter disposition — he rarely asks questions at oral arguments — camouflages an equally deep and tenacious intellect.

What matters most, however, is not a justice’s demeanor but his judicial philosophy. On this score, Justice Thomas’s originalism is unflinching. In Gonzales v. Raich (2005), for example, a majority of the court held that state medical marijuana laws are pre-empted because the federal Controlled Substances Act is a valid exercise of Congress’s power to regulate interstate commerce. Justice Thomas dissented, asserting that if Congress can regulate individuals’ ability to grow, possess or use marijuana for personal medicinal use, “it can regulate virtually anything,” and states will be left with little power.

Justice Scalia concurred with the Gonzales majority. Because the Controlled Substances Act broadly regulated interstate commerce in illicit drugs, Justice Scalia reasoned, states could not exempt medical marijuana patients whose noncommercial activities — such as growing, possessing and using marijuana — never crossed state lines.

(Thanks to Michael Perry for the pointer).

I think Professor Foley is right that there were key differences between Scalia and Thomas regarding their commitments to originalism, but the essay does not identify what I regard as the most important.  Justice Thomas's opinions do not appear much constrained by precedent.  Scalia, on the other hand, felt somewhat constrained by precedent.  In Gonzales v. Raich, for example, he seemed to feel constrained by the Court's prior decision in Wickard v. Filburn (I think he was wrong to think Wickard controlled the outcome, but that's another matter).  Another well-known example is McDonald v. Chicago, in which Justice Thomas wanted to shift the basis of incorporation doctrine to the privileges or immunities clause and Scalia declined to join him on the basis of precedent.  My guess is that in most of the cases Professor Foley has in mind, the difference between the two Justices is explained by Scalia's somewhat greater respect for precedent.

At the same time, the difference should not be overstated.  Scalia wanted to overrule a wide range of nonoriginalist cases, and succeeded with probably more than many people realize.  He did not appear to have a well developed theory of precedent, and cases involving a closely divided court in which he chose precedent over original meaning are not numerous -- Gonzales v. Raich stands out because it is unusual, not because it is typical.  And Thomas, for his part, has not been entirely consistent in rejecting precedent.  For example, he has joined judgments and written concurring opinions applying the equal protection clause to the federal government on the basis of the nonoriginalist precedent Bolling v. Sharp and he has applied First Amendment doctrine to overturn state and federal law without questioning whether that doctrine accords with the Amendment's original meaning.  So while I agree that Scalia was somewhat more cautious than Thomas is in terms of questioning precedent, I think it is more a difference in degree than in basic methodology.

In any event, I guess we'll find out the nominee later today.

UPDATE:  At Huffington Post, Scott Gerber also favors Thomas over Scalia as a model for the future Justice, because Thomas better understands the connection between the Constitution and the Declaration of Independence, and because Thomas' opinions do not use such divisive rhetoric.