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Sunday, June 26, 2005

The Scalia-Thomas crystallization

The October 2004 term may be remembered for the many important cases decided, including Kelo, Raich, Roper and Booker. It may be remembered as the last term of William Rehnquist's long and distinguished career as a jurist. It may be remembered as the end of a minor conservative jurisprudential counter-revolution: Whither Nollan and Lucas (property rights)? Whither Lopez and Morrison (enforceable commerce power limits)?

But in addition, this term is significant for the insight and crystallization it has provided us in understanding Justice Thomas and Justice Scalia and how they differ. From this term on, the old liberal tag for Justice Thomas as Scalia's "pet" must be discarded. In particular, four decisions provide a window into the differences: Raich, Kelo, Granholm v. Heald and Cutter v. Wilkinson. Please note, I do not intend this post to be a comprehensive analysis, but merely perhaps a prelude to further analysis and discussion.

In Cutter, Justice Thomas wrote separately to express his opinion that the First Amendment's establishment clause was understand originally as a "federalism" provision.
The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." Amdt. 1. As I have explained, an important function of the Clause was to "ma[ke] clear that Congress could not interfere with state establishments." Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (opinion concurring in judgment). The Clause, then, "is best understood as a federalism provision" that "protects state establishments from federal interference."
Justice Scalia did not sign on to Justice Thomas' opinion, and one can probably guess why: Thomas' vision would have dramatic impact upon the current understanding of establishment, and would overturn almost all modern precedent. Thomas' contention that "Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion" is simply a step further than Scalia, no fan of the Lemon test or the "wall of separation", is willing to go. It will be interesting to see the opinion tomorrow in Van Orden. I predict that both justices will vote to uphold the displays in both cases, but perhaps in slightly different ways. While neither will agree with an Breyer split-the-baby approach or with O'Connor attempting to uphold the Commandments as "secular" symbols, I suspect they may write separate opinions in the cases.


The split in Raich was undoubtedly more complicated than mere precedent. Scalia noted in oral arguments that he thought Wickard a silly case, so to some extent, it probably did come down to whether the aggregation principle ought to carry the day and whether Wickard was still viable. But more than that, I would suggest its reality of modernity that leads to the ultimate split. Justice Scalia's originalist credentials ought not be dismissed, but at base, his principles are more of a guidebook, whereas for Thomas, originalism is, well, a commandment. Justice Scalia has always said that there must be pragmatist exceptions to his principled stands, stare decisis being one. Perhaps a recognition that, even more so than in Wickard's time, the market for most goods and services does not and cannot exist in a vacuum within a single state, leads to his position in Raich. Thus, the necessary and proper argument carries the day, because if the power of Congress reaches to the ability to restrict the drug trade, and to "schedule" drugs (T. More has suggested to me that the first may be within its power, the second perhaps not), how can they not also have the concurrent power to make their regulation effective. Scalia's argument may, of course, suffer from the thing he hates (in jurisprudence): evolution. As the underlying power expands, does it follow that the N&P power expands with it? In the end, Thomas retreats to an easily defensible position: even the framers knew that markets were inter-connected, but they didn't envision Congress would have the power to reach all conduct no matter where and how tenuously connected to commerce (this of course may have somet connection to their outcome in the Granholm/Swedenburg case. One can't say all the reasons they end up on different sides, but Raich certainly shows us their differences front and center.

Kelo has been the subject of extensive discussion, and while it seems clear that Scalia is a strong defender of private property rights, he did not sign onto Thomas' forceful originalist dissent. Is this the Oakeshottian conservatism again rearing its head?

Finally, the Granholm v. Heald wine-shipment cases provide a very interesting forum for brief analysis. Justice Scalia votes with the majority without an opinion. He obviously believes this to be a straight-forward case of discrimination against out-of-state interests, and he thinks the laws should be invalidated. He was apparently not convinced by Justice Thomas' further argument (a dissent Stevens labeled as persuasive and comprehensive) that even assuming discrimination, the

Webb-Kenyon Act and the Twenty-first Amendment cut off this intrusive review, as their text and history make clear and as this Court’s early cases on the Twenty-first Amendment recognized. The Court today seizes back this power, based primarily on a historical argument that this Court decisively rejected long ago.


Justice Thomas thought the majority opinion played fast-and-loose with history, arguing that the cases decided closest to the Twenty-First amendment were consistent with his view, and that only the more modern case of Bacchus supported the majority's reasoning. Thomas also noted that while the court pointed out some good policy reasons, "The Court’s focus on these effects suggests that it believes that its decision serves this Nation well. I am sure that the judges who repeatedly invalidated state liquor legislation, even in the face of clear congressional direction to the contrary, thought the same." The majority opinion in this case again seems to presuppose the need for uniform markets, much like Raich, while Justice Thomas again retreats the the dual sovereignty position that even in an age of uniform markets, states have significant powers to regulate their own citizens' access to these markets. In terms of Dormant Commerce Clause, I suggest we also look to the short separate opinions of Thomas and Scalia in the American Trucking case this term. First Justice Thomas:

I would affirm the judgment of the Michigan Court ofAppeals because "[t]he negative Commerce Clause has nobasis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application," Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610 (1997) (THOMAS, J., dissenting), and, consequently, cannot serve as a basis for striking down a state statute. Hillside Dairy Inc. v. Lyons, 539 U. S. 59, 68 (2003) (THOMAS, J., concurring in part and dissenting in part).


Now Justice Scalia:

...I agree with the Court that this fee does not violate the negative Commerce Clause. Unlike the Court, ante, at 3–4, 8–9, I reach that determination without adverting to various tests from our wardrobe of ever-changing negative Commerce Clause fashions: the balancing approach from Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the four-factor test from Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), and the internal-consistency test from cases such as American
Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987). Instead, I ask whether the fee "facially discriminates against interstate commerce" and whether it is
"indistinguishable from a type of law previously held unconstitutional
by this Court..."



I cannot hope to truly analyze the distinctions between these two distinguished jurists in this small space. I only hope to point out that this term perhaps more than any other in recent memory has seen the two most "conservative" justices on the courts often on different sides of important issues. The consequences of, and even the reasons for, such differences, are beyond this simple blogger. But for those who thought, and still think, of Justice Thomas as a mere "lapdog" without his own brain or jurisprudential style, the 2004 Term must call for a reassessment of this shallow understanding...whither Harry Reid?

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