The Corner

Thomas & Scalia

I’d be especially interested in Jonathan Adler and Mark Levin’s take on this.

Jonathan was so right yesterday about Will Baude’s TNR piece debunking the myth that Justice Thomas is a Justice Scalia puppet. I do think, though, that Baude stumbles a bit in trying to describe Thomas’s jurisprudence – which is understandable since it may be more sophisticated than a thematic sentence or two can accurately capture.

It cannot be true, as Baude argues, both that (a) Thomas, as an advocate of “textualism,” believes that the words of laws and the Constitution must be “taken at face value rather than interpreted in historical context”; and that (b) “Thomas . . . sees himself as a staunch defender of the classically liberal vision of the country’s founders.” The “classically liberal vision of the country’s founders” is a “historical context” – specifically, the historical context that is Thomas’s prism for “interpret[ing]” legal text. I think that makes him, like Scalia, more of an “originalist” than a “textualist” – although both of them clearly look at text first and resort to interpretation only if the textual meaning is not clear on its face.

It does seem to be true, as Baude argues, that the breadth of what Thomas sees as appropriate interpretive context is often narrower than what Scalia would permit. As Baude points out, in the Hamdi combatants case the two originalists reached opposite conclusions in part because Thomas relied on the Federalist Papers while Scalia went back to Blackstone – i.e., Thomas’s originalism was rooted in what the Framers said they were thinking, while Scalia was willing to delve into the then-established principles that informed the Framers at the time they said what they said.

It was also interesting to see how the two actually handled the text of the Constitution. Scalia rejected the Bush administration’s position because he saw detaining an American citizen without trial at a time when Congress had not suspended the writ of habeas corpus as a violation of the Suspension Clause. While acknowledging the Suspension Clause, Thomas, to the contrary, suggested that Congress probably could not have suspended the writ in Hamdi’s case because the text of the Clause says suspension is proper only if public safety is threatened by “Rebellion or Invasion[.]”

Evidently, Thomas does not see the 9/11 attacks as an “Invasion” that would permit Congress to suspend the writ – at least such that the writ would remain suspended three years later. I think he would have a point if we were not still in an active state of war in direct response to 9/11. Given that we are, I at least am much more comfortable with Scalia’s view that 9/11 was surely an “invasion” that would empower Congress to suspend the writ – which Congress absolutely should do with respect to enemy combatants, whether Americans or aliens, who are apprehended while the war ensues. If Congress had done this, we would not have travesties like Rasul, the Guantanamo combatants case in which the Court – over the dissents of Scalia and Thomas – vested alien enemy combatants with a right to file habeas petitions in U.S. courts.

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