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The Court Needs Another Clarence Thomas, Not a Scalia The Court Needs Another Clarence Thomas, Not a Scalia
(about 3 hours later)
MIAMI — President Trump will soon announce his nominee for the Supreme Court seat vacated by the death of Justice Antonin Scalia. Many conservatives argue that a jurist who replicates Justice Scalia’s approach to law should fill the vacancy. Mr. Trump appears to agree, vowing to nominate federal judges “very much in the mold of Justice Scalia.” While Justice Scalia was a brilliant and ardent defender of conservatism, achieving a restoration of the original meaning of the Constitution — particularly its separation of powers — could be more quickly and effectively achieved by a nominee whose approach is more aligned with that of Justice Clarence Thomas. MIAMI — President Trump is scheduled this evening to announce his nominee for the Supreme Court seat vacated by the death of Justice Antonin Scalia. Many conservatives argue that a jurist who replicates Justice Scalia’s approach to law should fill the vacancy. Mr. Trump appears to agree, vowing to nominate federal judges “in the mold of Justice Scalia.” While Justice Scalia was a brilliant and ardent defender of conservatism, achieving a restoration of the original meaning of the Constitution — particularly its separation of powers — could be more quickly and effectively achieved by a nominee whose approach is more aligned with that of Justice Clarence Thomas.
The demeanors of the two justices could not have been more divergent. Justice Scalia was a firebrand known for opinions that were exceedingly eloquent but often acerbic. Justice Thomas’s quieter disposition — he rarely asks questions at oral arguments — camouflages an equally deep and tenacious intellect. The demeanors of the two justices could not have been more divergent. Justice Scalia was a firebrand known for opinions that were eloquent but often acerbic. Justice Thomas’s quieter disposition — he rarely asks questions at oral arguments — camouflages an equally deep and tenacious intellect.
What matters most, however, is not a justice’s demeanor but his judicial philosophy. On this score, Justice Thomas’s originalism is unflinching. In Gonzales v. Raich (2005), for example, a majority of the court held that state medical marijuana laws are pre-empted because the federal Controlled Substances Act is a valid exercise of Congress’s power to regulate interstate commerce. Justice Thomas dissented, asserting that if Congress can regulate individuals’ ability to grow, possess or use marijuana for personal medicinal use, “it can regulate virtually anything,” and states will be left with little power.What matters most, however, is not a justice’s demeanor but his judicial philosophy. On this score, Justice Thomas’s originalism is unflinching. In Gonzales v. Raich (2005), for example, a majority of the court held that state medical marijuana laws are pre-empted because the federal Controlled Substances Act is a valid exercise of Congress’s power to regulate interstate commerce. Justice Thomas dissented, asserting that if Congress can regulate individuals’ ability to grow, possess or use marijuana for personal medicinal use, “it can regulate virtually anything,” and states will be left with little power.
Justice Scalia, by contrast, concurred with the Gonzales majority. Because the Controlled Substances Act broadly regulated interstate commerce in illicit drugs, Justice Scalia reasoned, states could not exempt medical marijuana patients whose noncommercial activities — such as growing, possessing and using marijuana — never crossed state lines. Justice Scalia concurred with the Gonzales majority. Because the Controlled Substances Act broadly regulated interstate commerce in illicit drugs, Justice Scalia reasoned, states could not exempt medical marijuana patients whose noncommercial activities — such as growing, possessing and using marijuana — never crossed state lines.
Justice Thomas countered that the constitutional principle of federalism, whereby power is divided between the federal government and the states, allows states to adopt health and safety laws tailored to the needs and desires of their own citizens, provided citizens’ activities are not commercial in nature and do not cross state lines. Justice Thomas countered that the constitutional principle of federalism, whereby power is divided between the federal government and the states, allows states to adopt health and safety laws tailored to the needs and desires of their citizens, provided citizens’ activities are not commercial in nature and do not cross state lines.
Justice Thomas’s narrower construction of the Commerce Clause is more closely aligned with its original meaning. His view, if ever accepted by a majority of the court, would significantly curb federal power, creating more room not only for state experimentation on various issues, but also for individual liberty. As Justice Thomas’s dissent in the gay marriage decision, Obergefell v. Hodges (2015), put it: “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The framers created our Constitution to preserve that understanding of liberty.” Justice Thomas’s narrower construction of the Commerce Clause is more aligned with its original meaning. His view, if ever accepted by a majority of the court, would curb federal power, creating more room not only for state experimentation on issues, but also for individual liberty. As Justice Thomas’s dissent in the gay marriage decision, Obergefell v. Hodges (2015), put it: “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The framers created our Constitution to preserve that understanding of liberty.”
Another important aspect of Justice Thomas’s brand of conservatism is his rejection of “Chevron deference.” In Chevron v. National Resources Defense Council (1984), the Supreme Court held that when a statute is ambiguous, courts must defer to an administrative agency’s interpretation of the statute. Chevron deference has aggrandized executive power, giving agencies considerable leeway to promulgate regulations on controversial subjects not addressed by Congress and coming dangerously close to encroaching on legislative power.Another important aspect of Justice Thomas’s brand of conservatism is his rejection of “Chevron deference.” In Chevron v. National Resources Defense Council (1984), the Supreme Court held that when a statute is ambiguous, courts must defer to an administrative agency’s interpretation of the statute. Chevron deference has aggrandized executive power, giving agencies considerable leeway to promulgate regulations on controversial subjects not addressed by Congress and coming dangerously close to encroaching on legislative power.
Justice Scalia was an ardent defender of Chevron deference, but Justice Thomas is not. For example, in City of Arlington v. Federal Communications Commission (2013), Justice Scalia wrote a majority opinion that doubled down on Chevron by rejecting the invitation to create a “jurisdictional” exception that many conservatives desired.Justice Scalia was an ardent defender of Chevron deference, but Justice Thomas is not. For example, in City of Arlington v. Federal Communications Commission (2013), Justice Scalia wrote a majority opinion that doubled down on Chevron by rejecting the invitation to create a “jurisdictional” exception that many conservatives desired.
Justice Scalia’s opinions immediately before his death suggested that he may have been reconsidering his unwavering defense of Chevron deference. For example, in Michigan v. Environmental Protection Agency (2015), Justice Scalia wrote a majority opinion that affirmed the applicability of Chevron deference, yet simultaneously concluded that an Environmental Protection Agency rule was irrational and undeserving of deference. Justice Thomas concurred separately, asserting more boldly that Chevron deference was a usurpation of judges’ constitutional power to interpret federal laws and “say what the law is” — a power acknowledged to belong to the judiciary since Marbury v. Madison (1803). Justice Scalia’s opinions before his death suggested that he may have been reconsidering his unwavering defense of Chevron deference. For example, in Michigan v. Environmental Protection Agency (2015), Justice Scalia wrote a majority opinion that affirmed the applicability of Chevron deference, yet simultaneously concluded that an Environmental Protection Agency rule was irrational and undeserving of deference. Justice Thomas concurred separately, asserting more boldly that Chevron deference was a usurpation of judges’ constitutional power to interpret federal laws and “say what the law is” — a power acknowledged to belong to the judiciary since Marbury v. Madison (1803).
In his concurring opinion in Michigan v. E.P.A., Justice Thomas observed, “We seem to be straying further and further from the Constitution without so much as pausing to ask why.” Justice Thomas is right. At a time when the Constitution’s separation of powers is eroding at breathtaking velocity, his fearlessness in defying unconstitutional actions is needed now more than ever.In his concurring opinion in Michigan v. E.P.A., Justice Thomas observed, “We seem to be straying further and further from the Constitution without so much as pausing to ask why.” Justice Thomas is right. At a time when the Constitution’s separation of powers is eroding at breathtaking velocity, his fearlessness in defying unconstitutional actions is needed now more than ever.
In Federalist No. 78, Alexander Hamilton wrote that federal judges must possess more than just legal knowledge, they must have the courage to defy popular passions. “It is easy to see,” he said, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.” In Federalist No. 78, Alexander Hamilton wrote that federal judges must possess legal knowledge and the courage to defy popular passions. “It is easy to see,” he said, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”
President Trump should heed Hamilton’s advice and nominate a jurist with the same degree of fortitude and devotion to the Constitution’s original meaning that has been exhibited by Justice Thomas. President Trump should heed Hamilton’s advice and nominate a jurist with the fortitude and devotion to the Constitution’s original meaning that has been exhibited by Justice Thomas.