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Scalia & Thomas: Leaders of the Court

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Anarchy For Me, Not For Thee

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Angelos Fails As A Relief Pitcher

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Peter Angelos In Foul Territory

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Fourth Amendment Sneak Attack

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Grabbing the Rail

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Bush's Best Idea

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The Madness of Gun Buybacks

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Taking Aim At The Constitution

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The Great GOP Land Grab

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Million Mom March: Much Less than Advertised

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New York's New Archbishop

5/23/00 9:20 a.m.
Scalia & Thomas: Leaders of the Court
Their dissents are eloquent, and important.

By John O. McGinnis, professor, Yeshiva U.’s Cardozo School of Law

ne of the most outrageous charges leveled against Justice Clarence Thomas is that he simply parrots Justice Antonin Scalia. If the charge had been made that Justice Thurgood Marshall parroted Justice William Brennan, it would have been harshly dismissed as racist. In fact, Justices Scalia and Thomas agree no more than other justices who share the same general jurisprudential leanings — in their case, originalism and textualism. Indeed, of the two Justice Thomas has been the bolder in arguing for restoring federalism and other principles of limited government.

In two important cases yesterday, both decided by 5-4 votes, Justices Scalia and Thomas again displayed their independence from one another. In the first, United States v. Playboy Entertainment Group, the majority, including Justice Thomas, invalidated a congressional statute that required cable stations to scramble "adult entertainment" programs except late at night. (Adult entertainment is an obvious misnomer, since these programs could provide entertainment only to adolescents arrested in their emotional development.) The Court held that the First Amendment required the government to require alternatives that would have been less restrictive of speech, such as blocking adult-entertainment programs only to cable subscribers who requested such blocking.

Justice Scalia, in an interesting dissent (in which he was joined by no other justices), argued that adult entertainment in this context could be considered obscene, and hence unprotected by the First Amendment — because the Playboy Entertainment Channel advertised on the basis of its salacious contents. According to Justice Scalia, this context negates the notion that buyer and the seller of the information have any real interest in the redeeming social content that can save sexually explicit materials from being judged obscene.

Justice Thomas, in a praiseworthy concurrence in which he, too, spoke only for himself, pressed the obscenity argument from a different angle. He believed that many of the programs presented were obscene in any context, but noted that the government had failed to try to prove their obscenity. He argued, plausibly, that the Court should not water down general First Amendment standards for protected speech because of the failure of government prosecutors to prove this material obscene and hence unprotected. Justice Thomas’s concurrence highlights yet another instance of negligent law enforcement by the Clinton administration.

In another interesting case, Geier v. Honda Motor Car, Justices Scalia and Thomas were once again on opposite sides. Justice Scalia joined the five-member majority, which held that a car’s compliance with federal safety standards preempted state-common-law tort actions. In other words, because the car Honda made met federal standards by including seat belts and shoulder harnesses, Ms. Geier could not sue under state law for negligence on the grounds that it had failed to install an airbag.

The dissent — joined by Justice Thomas — argued that the federal safety standard did not preempt state law. It observed that the statute establishing federal safety standards had a savings clause expressly providing that the federal standards did not "exempt" cars from complying with state standards. It also argued that given what should be a strong presumption against preemption, it was wrong to assume that Congress had authorized the Secretary of Transportation to preempt state law, or even if it had, that the Secretary had expressed an intent through the regulation to preempt state law.

In my view, Justice Thomas and the other dissenters had the better of the argument. Preemption may seem an arcane topic, but it presents very important issues for our structure of government. Applying a strong presumption against preemption better reflects the renewed respect for the principle of federalism. If the federal government must act clearly to displace state law, states gain a clear political opportunity in Congress to engage in political struggle to protect their autonomy and their experiments in public policy. Second, a stronger presumption against preemption would comport better with a stricter view of separation of powers. In contrast, a flexible doctrine of preemption permits members of Congress to avoid accountability, by permitting them to transfer key decisions about whether to displace state law to an unelected body — the judiciary.

But, whatever one’s view about these particular cases, Justice Scalia’s and Justice Thomas’s independently outstanding performances on the Court are once again the highlights of this term. Indeed, if we had more Justices who were willing to treat law as a set of binding commands rather than as vessels for their policies and moral preferences, we would again have a constitutional system worthy of the Framers, even if these Justices engaged in an occasional — and useful — controversy about the details of that system.

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