It has been approximately 20 years since Justice Clarence Thomas was confirmed as an Associate Justice. Clearly, Thomas is the most originalist justice on the Court, and with Justice Scalia, has been at the forefront of the originalist renaissance in American Constitutional Law.
Justices Thomas and Scalia are an interesting study in contrasts. Scalia appears to be less principled — or to put it differently, more pragmatic — than Thomas. Scalia is more likely to compromise on his originalism than Thomas is, departing from originalism without stating a clear principle that justifies his action. Still, I believe many observers would rate Scalia's opinions as more persuasive than Thomas's are — of higher quality if you will. That may be so, but Thomas's are more original — more willing to break a path on an issue.
When the history of this period of the Supreme Court is written, I wonder who will be seen as the more important justice. Will it be Scalia, the popular face of originalism, or Thomas, the great dissenter who pushed some of the other justices more toward an originalism they otherwise would have ignored?
For a typical Nina Totenberg hatchet job on Thomas (how will these type of reports be seen in the future?), albeit one that included a couple of defenders of Thomas, see here.
Update: For the claim that Totenberg unfairly treats Justice Thomas's first Eighth Amendment opinion in the above piece, see Ed Whelan's Perpetuating an Ugly Myth here.
Posted at 8:04 AM