As we mark the anniversary of Justice Thomas’s 20th anniversary on the Court, I’m pleased to learn (from Todd Zywicki at the Volokh Conspiracy) that Claremont McKenna professor Ralph A. Rossum has a book forthcoming on Justice Thomas’s jurisprudence. In the year of Justice Scalia’s 20th anniversary, Rossum published his excellent Antonin Scalia’s Jurisprudence: Text and Tradition, and I’m confident that his new book on Justice Thomas will be as comprehensive and insightful. This op-ed by Rossum offers a preview of sorts, including a contrast he draws between Scalia’s and Thomas’s versions of originalism:
In the 446 opinions he has written since his confirmation, Thomas has assiduously pursued an original understanding approach to constitutional interpretation and a jurisprudence of constitutional restoration. He has been unswayed by the claims of precedent – by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions.…
The two Supreme Court justices who unabashedly identify themselves as originalists are Clarence Thomas and Antonin Scalia. Yet, they are different in their approaches. Scalia consistently employs an original public meaning approach to interpretation.
He wants to know what the words of the text being interpreted meant to the society that adopted it. While he often turns to founding documents, he does so because they “display the original meaning of the text.”
Thomas, pursuing an original understanding approach, incorporates Scalia’s narrower original public meaning approach, but then widens the originalist focus and asks as well why the text was adopted. Concerning the Constitution, Thomas turns readily to founding era sources not only to determine the original meaning of the text being interpreted, but also to ascertain the ends the framers sought to achieve, the evils they sought to avert, and the means they employed to achieve those ends and avert those evils when they adopted and ratified that text.
One minor point: Rossum’s op-ed states that Thomas was “sworn in” on October 23, 1991, but the Federal Judicial Center says that Thomas “received [his] commission” on October 18, 1991—which would make today his 20th anniversary. (I’m guessing that Rossum is referring to a later ceremonial swearing-in.)