Mike Ramsey sort of takes issue with my claim that Justice Scalia is more pragmatic or less principled than Justice Thomas. I say, sort of, because he seems to acknowledge what is my main point.
I wrote, as Mike quotes:
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.
What did I mean by this? Mike is correct to point out that I had in mind primarily Scalia's following of precedent. I don't necessarily find the following of precedent unprincipled for an originalist. As Mike kindly notes, I have written an article arguing that originalist judges should follow precedent in certain situations.
But following precedent in an unprincipled manner is unprincipled. Of course, I didn't even say that Scalia did that. What I said was Scalia did not state "a clear principle that justifi[ed]" his failure to follow precedent. And I stand by my claim: Scalia's failure to justify when he follows, and when he does not follow, precedent is an aspect of his appearing to be unprincipled.
Of course, Scalia may have a principled basis for why he follows precedent in general, and why he does so in particular cases. But he has not supplied it. And that is a bit of a problem.
Posted at 11:11 PM