In the Cleveland Plain Dealer, Scott Douglas Gerber (Ohio Northern): Clarence Thomas' views to loom larger at Supreme Court following Scalia's death. An key excerpt:
What has gone unmentioned to date, however, is that Justice Thomas and Justice Scalia did not share the same interpretive approach in one major category of constitutional law: civil rights. As the recent tributes to Justice Scalia have made clear, Justice Scalia was the pre-eminent figure in American law on the conservative strand of originalism …. But Justice Thomas is not a conservative originalist on civil rights questions. Rather, he is what has come to be known as a "liberal originalist:" an originalist who places the libertarian political philosophy of the Declaration of Independence at the heart of the American conception of civil rights.
Although Justices Thomas and Scalia tended to vote together in civil rights cases, Justice Scalia declined to sign on to those portions of Justice Thomas' opinions that invoked the Declaration of Independence as the rule of decision.
And from the conclusion:
I seriously doubt that Justice Scalia's passing will transform Justice Thomas into the loquacious participant during oral argument that Justice Scalia was. But I do think that Justice Thomas's liberal originalism will come to supplant Justice Scalia's conservative originalism as the predominant alternative to the so-called progressive constitutionalism of the Court's Democratic appointees. Justice Scalia himself appeared open to the possibility: Just last term, he finally joined in full an opinion that Justice Thomas authored that invoked the Declaration of Independence.
Note: Professor Gerber is the author of First Principles: The Jurisprudence of Clarence Thomas (NYU Press 2002).
Posted at 6:19 AM