The systematic disagreements between Thomas and Scalia, to my mind, stem from three principle sources: Thomas' greater commitment to originalism in cases where the original meaning clashes with precedent or modern policy preferences (evident in the federalism cases, especially Raich); Thomas' libertarian streak, which sometimes clashes with Scalia's social conservatism (evident in the First Amendment cases where they disagree; and perhaps also in Kelo); and Thomas' commitment to a broader view of executive power than Scalia is willing to support (as in the Guantanamo cases, where Thomas is the only justice to fully endorse the Bush Administration's sweeping claims of wartime executive power).If you have a set of beliefs that simultaneously 1) insist that the Constitution be narrowly interpreted based on its original, specific meaning, 2) insist that the executive branch have essentially unlimited wartime power, and 3) invite the description of "libertarian", then it's not clear to me that you have a coherent philosophy. Consider me unimpressed that Thomas' independence from Scalia amounts to departing more-or-less randomly from the Scalian line, without reliable correlation with any sort of underlying ideological differences.
Sunday, January 28, 2007
Clarence Thomas is a Weirdo
With defenders like Ilya Somin, Clarence Thomas doesn't need attackers: