October 4, 2016 | No Comments
As the Supreme Court hears its first arguments of the new term today, American law enters a new phase. More than seven months after the sudden death of Justice Antonin Scalia last February, his seat on the court remains vacant—and his legacy remains deeply uncertain. It seems clear that Scalia will have a place in the pantheon of American jurisprudence. His name will be a rallying cry both for conservatives fighting to advance his project and for liberals who hope to defeat it. But which ideas, exactly, will Scalia stand for in the future?
Like all deceased heroes, Scalia’s future significance depends less on what he did during his lifetime than on how he is presented later—and by whom. The answer turns in part on the outcome of the election, of course. Assuming that the current standoff does not continue indefinitely, the president and Senate will fill Scalia’s seat sometime after November, thus determining the court’s ideological balance of power. But to a considerable extent, Scalia’s legacy depends on one particular person who already sits on the court: Justice Clarence Thomas.
For more than a generation, Thomas has been widely dismissed as little more than Scalia’s sidekick. The two were in many respects the court’s most conservative justices, and most of the time they voted the same way. But as a matter of public perception, their partnership had a distinctly Batman-and-Robin quality: a tight team, yes, but with no doubt about who was the senior superhero and who the loyal ward. Scalia was a person of considerable reputation in legal circles even before he ascended to the court in 1986, and once there his active role in oral argument and his lively prose made him the judiciary’s most vivid and influential personality. When Thomas was nominated in 1991, he was widely derided as underqualified, and once on the court he generally sat silently through oral arguments while Scalia took a loud and central role. Quickly, the perception emerged that Thomas was tagging along behind the brilliant man whose opinions he generally joined.
That idea was always a canard. Scalia and Thomas agreed on many things, but they had their share of important disagreements as well. On a wide range of issues—federal power over medical marijuana, due process for enemy combatants, the scope of First Amendment protection for commercial advertising—Scalia went one way and Thomas went another. And when they parted ways, it was usually Thomas who took the more radical position.
Broadly speaking, they shared a commitment to originalism—that is, to the idea that the enforceable meaning of the Constitution today must be the meaning that the text of the Constitution had when it was first adopted. But Scalia was more willing than Thomas to temper his originalism with respect for established precedent. Consider the obscure-sounding but highly consequential corner of constitutional law called dormant commerce doctrine—the set of rules under which courts prohibit states from engaging in economic protectionism against other states. Scalia and Thomas both doubted that the founders meant for courts, rather than Congress, to police state-on-state protectionism. But Scalia deferred to precedent. American courts have done the job for generations, and for Scalia that history gave the practice legitimacy. Thomas, in contrast, has written in several cases that he would throw out the whole doctrine: If Michigan wanted to prohibit the sale of cars made in Tennessee, Thomas would not stand in the way.
Or consider their broad perspectives toward federal regulation. Both Thomas and Scalia often voiced skepticism about federal power. But for Scalia more than for Thomas, that skepticism was tempered by other commitments. Scalia was more deferential toward the national democratic process that ordains federal laws, and he had a stronger sense that America cannot realistically roll away the modern administrative state and install in its place something like early-1900s government. By comparison, Thomas’s opinions are more sanguine about the judiciary’s capacity for unmaking what American government became in the 20th century.
To be sure, Scalia and Thomas agreed with each other more often than not. During the quarter-century when they served together, they came out the same way in nearly 85 percent of the cases they saw. But that level of agreement is not so different from the level of agreement among other generally like-minded justices. In Scalia’s last full term at the court, he agreed with Chief Justice Roberts 80 percent of the time—more, in that year, than Scalia and Thomas agreed with each other. Justice Breyer’s rate of agreement with Justice Kagan during that term was nearly 95 percent, but nobody has suggested that Kagan just repeats what Breyer says rather than thinking for herself—or vice versa.
So the idea that Thomas was just a second Scalia was always overblown. And probably a bit racist, if not consciously so. Thomas’ famous silence on the bench—he went 10 years without asking a question at oral arguments—probably exacerbated the notion that he was not an independent thinker. But that notion was always false, and Thomas probably just didn’t care to fight it by speaking up when he wasn’t otherwise inclined to do so. He knew his own mind, and he knew it sometimes differed from Scalia’s. If other people wanted to think that he simply thought what Scalia thought, well, that was their problem.
Now that Scalia is gone, though, the legal community’s over-identification of Thomas with Scalia offers Thomas a weapon of enormous power. Scalia stood at the head of American legal conservativism, intellectually and symbolically. His death has left a vacuum in that role. Who is better positioned than Thomas to present himself as the inheritor of Scalia’s mantle? There he sits, already a justice of the Supreme Court, with an audience primed to think that his ideas and Scalia’s ideas are the same. When Thomas writes opinions, he can say that what he writes is not only his view but would have been Scalia’s view as well. Indeed, he doesn’t need to come out and say it. For years, the legal world has thought of Scalia and Thomas as a unit, so people will naturally think of Thomas now as the closest thing the court still has to Scalia himself. In short, Thomas holds the biggest megaphone for declaring what Scalia stood for.
Consciously or otherwise, Thomas is taking steps to seize his opportunity. Note, for example, exactly when it was that Thomas ended his famous practice of remaining silent during oral arguments. On February 29 of this year, during the court’s first set of arguments after Scalia died, Thomas shocked the room by asking questions from the bench. Can it be a coincidence that Thomas made his voice heard immediately after Scalia’s fell silent? And what better way to suggest that Thomas is speaking Scalia’s truth than to start speaking just when Scalia is no longer able to speak directly? With the revered visionary gone, the spirit now rests upon his successor.
The symbolic import of Thomas’ starting to speak just after Scalia passed away is accompanied by a parallel change in Thomas’ written judicial opinions. In the final months of the court’s last term, after Scalia died, Thomas in three opinions cited Scalia’s nonjudicial writings—books and articles in which Scalia made arguments about how law should be interpreted. Three such instances might not seem like a big effort at claiming to speak for the school of Scalia, until one realizes that justices rarely cite nonjudicial writing at all—and that when they do cite each other’s nonjudicial work, it is often to needle a colleague for inconsistency. (“You wrote an article saying that the 41st Amendment means X, so there is something wrong with your claiming in your opinion today that it means Y.”) In the 24½ years during which Scalia and Thomas sat together on the Supreme Court, Thomas’ judicial opinions cited Scalia’s books and articles exactly zero times. But as soon as Scalia died, Thomas’ opinions became a forum for the foregrounding of Scalia’s ideas.
Perhaps Thomas started citing Scalia’s work as a way of honoring an absent friend, rather than in an effort to present himself as the person now carrying Scalia’s baton. Or perhaps he was doing both at the same time. But whatever Thomas’ subjective intentions, a consistent practice of wrapping his opinions in Scalia’s flag can only strengthen an assumption that the court’s audience is already disposed to accept: that Thomas’ ideas are also Scalia’s ideas. Note too that all three of Thomas’ deployments of Scalia’s books and articles in the final months of the last term occurred in separate opinions—concurrences and dissents—rather than when Thomas was writing for the court. In other words, Thomas’ channeling of Scalia is not indiscriminate. So far, it happens when Thomas’ opinions speak for Thomas as an individual justice staking out a view distinctive from that of the court as a whole. In other words, Thomas’ invocations of Scalia do not present the court as Scalia’s successor. They cast Thomas in particular in that role. And if Thomas is the one who relays Scalia’s wisdom, then it will largely be Thomas who gets to decide what Scalia’s wisdom was.
Much of the time, Thomas will surely deploy Scalia in the name of a cause that Scalia would have endorsed himself. The two of them did agree an awful lot, after all. But they were also always different—in the extent and flexibility of their originalism, in the degree of their skepticism toward federal power, and in other ways as well. In the future, Scalia may be molded to Thomas’ own vision. And the longer Thomas serves, the more the court’s agenda will move beyond issues that Scalia directly confronted, thus giving Thomas even more freedom—whether by design or just by doing what comes naturally to him—to shape perceptions of what Scalia would have done.
While Scalia lived, the idea that Thomas was Scalia’s mouthpiece was insulting to Thomas. Now it’s enabling for him. So as the court’s new term unfolds, notice how Thomas presents Scalia. In a great act of turnabout, the justice long dismissed as merely copying Scalia may become the chief arbiter of what Scalian jurisprudence means. A generation from now, if originalists argue for sweeping away precedent rather than compromising with it, or if constitutional conservatives insist on trying to confine federal legislation to its pre-New Deal footprint, they may well understand themselves to be pursuing Scalia’s project—but the Scalia they imagine will be Scalia as Thomas reshaped him. Living longer has its benefits.