December 07, 2004

The Trouble With Thomas

As Noam Scheiber notes, it's tough for people to explain why they respect Antonin Scalia ("even if he's conservative, he's still brilliant") but not Clarence Thomas ("he's... uh... I think...") without sounding a wee bit racist. But the easy answer here is that Scalia believes in stare decisis (the notion that one ought to respect precedent), and Thomas does not. That makes Thomas a wild card, a radical, and one scary dude.

(According to David Garrow, though, some of Thomas' decisions betray a more muted tone. See United States v. Lopez, where Thomas says he'd be willing to interpret the Commerce Clause in a manner that reflected recent history: "Although I might be willing to return to the original understanding [of the Commerce Clause], I recognize that many believe it is too late in the day to undertake a fundamental reexamination of the past sixty years." Of course, many believe is not quite the same thing as I believe, yeah? And mightn't he feel more emboldened if a few more judges felt the way he did? Hence the worry at nominating another Clarence Thomas-type judge!)
-- Brad Plumer 11:09 AM || ||