In noting Justice Thomas’ 20 years on the Supreme Court, my co-blogger Mike Rappaport writes, somewhat in passing and without elaboration:
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.
I can’t let this go without a response (disclosure: I was a Scalia clerk many years ago). I don’t think Mike’s comment is entirely inaccurate, but it’s seems unfair without further explanation.
It’s been noted, correctly I think, that Justice Scalia is much more likely to follow precedent than Thomas. I would guess (though I haven’t done a systematic study) that in most cases where Scalia and Thomas disagree the difference is that Scalia relies on precedent (or post-ratification tradition more broadly) to depart from originalism. Prominent examples include McDonald v. City of Chicago, the Second Amendment incorporation case in which Scalia joined the plurality ruling under the due process clause rather than Thomas’ privileges-or-immunities concurrence; and Gonzales v. Raich, the commerce clause case in which Scalia agreed with the majority ruling on the strength of Wickard v. Filburn, rather than Thomas’ dissent.
This makes Thomas a purer originalist than Scalia. It doesn’t mean Scalia is unprincipled, only that his principles extend beyond the pure original meaning. As a modern theory of interpretation, there is much to be said for a theory that combines original meaning and precedent. Indeed, Mike has a very important paper (with Northwestern’s John McGinnis) that says as much. So unless Mike has some examples in mind that I’m not thinking of, the charge that Scalia is “less principled” than Thomas seems unfair.
I do think Scalia has a bit of problem here, though, and it may be that this is what Mike is thinking. I’m not aware that Scalia has set out a comprehensive theory of when to follow precedent and when not to. For example, he’s famously been at the forefront of the argument that Roe v. Wade should be overturned. Perhaps there are differences between Roe and the precedents Scalia would sustain. But without a full explanation, he’s at least open to the charge that his main problem with Roe (as opposed to other precedents) is that he doesn’t like the outcome. (Of course, no one on the Court appears to have a comprehensive theory of precedent, so perhaps it’s not fair to fault Scalia on that ground.)
In sum I think it’s unfair to say that Scalia is less principled that Thomas. It’s fair to say he’s less originalist (not that there’s anything wrong with that). And it’s fair to say that a more complete theory of precedent would be an important extension of his jurisprudence.
Posted at 10:00 PM