March 6, 2016

SCOTT GERBER: Clarence Thomas’ views to loom larger at Supreme Court following Scalia’s death.

What has gone unmentioned to date, however, is that Justice Thomas and Justice Scalia did not share the same interpretive approach in one major category of constitutional law: civil rights. As the recent tributes to Justice Scalia have made clear, Justice Scalia was the pre-eminent figure in American law on the conservative strand of originalism that Mr. Liptak’s quote describes. But Justice Thomas is not a conservative originalist on civil rights questions. Rather, he is what has come to be known as a “liberal originalist:” an originalist who places the libertarian political philosophy of the Declaration of Independence at the heart of the American conception of civil rights.

Although Justices Thomas and Scalia tended to vote together in civil rights cases, Justice Scalia declined to sign on to those portions of Justice Thomas’ opinions that invoked the Declaration of Independence as the rule of decision.

I’m a fan of the Declaration as a source of interpretive principles, and so were the Framers. Just read Story’s Commentaries on this.

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