I mentioned earlier that in his opinion in the Texas sodomy case, Justice Thomas called the law “uncommonly silly” (quoting Justice Stewart in the Griswold contraception case). I’m of two minds about Justice Thomas’s having done that. Not because I disagree with him on the policy, but because one of the virtues of his method of judging is that we don’t need to know his views of the underlying policy issue. He doesn’t need to share it with us to decide the case. In today’s circumstances, however, it may be necessary to say what Thomas did in order to make it clear that the policy and constitutional questions raise (partially) separable issues.