On the Court, Thomas has argued for an originalist or "textualist" view of the Constitution faithful to that document's text and history. Early in his term on the court, critics often suggested that Thomas lacked a judicial philosophy of his own, and that he unreflectingly signed on to the opinions of Justice Antonin Scalia. Although Thomas has frequently voted with Scalia, his opinions have sometimes diverged from Scalia's based on Thomas's alternative readings of Constitutional history. Scalia appears much more willing to be guided by precedent in his decisions, even when he disagrees with the precedent in question. He has said that Thomas "doesn't believe in stare decisis, period." Although both Thomas and Scalia are considered the court's conservative wing, originalism does not inherently or intrinsically favor conservative political views or liberal political views. Consequently, Thomas's originalism occasionally leads him to some seemingly surprising decisions, as discussed below.
In general, Thomas has been a proponent of an expansive First Amendment interpretation, arguing that anonymous speech, money donated to political campaigns, and commercial speech attempting to sell products all qualified for protection. In McIntyre v. Ohio Elections Commission (1995), Thomas agreed with a majority of the Court that a law banning anonymous campaign literature violated the First Amendment. Scalia disagreed. He argued that the evidence was insufficient to conclude there was an original understanding and noted the wide popular support for laws against it. But while the Court majority based its decision on the fact that anonymity has "played an important role in the progress of mankind", Thomas filed a concurrence arguing that protection of anonymous speech was part of the original understanding of the amendment, noting that The Federalist Papers were published anonymously.
He has also taken the point of view that the Commerce Clause should be narrowly interpreted, covering only actual interstate commerce, not things related to it; he thus concurred with the Court's decisions in United States v. Lopez invalidating a federal law prohibiting possession of a firearm in a school zone. In the same vein, Justice Thomas's judicial philosophy does not encompass the Dormant Commerce Clause, the negative implication of the Commerce Clause, which is often employed to strike down protectionist legislation. See Camps Newfound/Owatonna, Inc. v. Town of Harrison (Thomas, dissenting).
Thomas also has suggested that he favors the personal right (as opposed to collective right) interpretation of the Second Amendment, suggesting that the Brady Act's background checks may have violated it. See Printz v. United States (Thomas, concurring).
In 1992, eight months after being appointed to the court, Thomas joined a dissent in Planned Parenthood v. Casey authored by Justice Scalia, also joined by Chief Justice (Rehnquist) and Justice White, which concluded "that a woman's decision to abort her unborn child is not a constitutionally protected "liberty" because (1) the Constitution says absolutely nothing about it [...]." Thomas (along with Scalia and White) also concurred with a separate dissent authored by Chief Justice Rehnquist which stated "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."
Thomas has followed a narrow construction of the Eighth Amendment. In Hudson v. McMillian (1992), he dissented, arguing that the beating of a Louisiana inmate by three prison guards was not cruel and unusual punishment. Thomas wrote that the beating, which left Hudson with minor bruises, facial swelling, loosened teeth, and a cracked dental plate, did not cause sufficient harm to meet the constitutional standard; however, he left open the option of a criminal charge or a tort claim, just not a constitutional claim. "In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not 'cruel and unusual punishment.' In concluding to the contrary, the Court today goes far beyond our precedents."
Thomas has carved out a distinctive voice for himself on the highly-charged racial issues before the Court. In Missouri v. Jenkins (1995), the Court overturned a lower court ruling forcing the city of Kansas City, Missouri to spend more money on their predominantly black school system to attract white suburban children. Thomas filed a separate concurrence where he argued "'Racial isolation' itself is not a harm; only state-enforced segregation is," and that integration assumed that blacks could not get ahead on their own.
In Adarand Constructors v. Peña (1995), Thomas commented on affirmative action: "I write separately...to express my disagreement with the premise...that there is a racial paternalism exception to the principle of equal protection...That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence ('We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness')."
In United States v. Fordice (1992), he agreed that Mississippi had not done enough to desegregate its colleges and universities. But he added that increased integration could hurt historically black colleges. "It would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges," he wrote.
In Zelman v. Simmons-Harris (2002), he voted to uphold an Ohio school voucher plan. "While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society," he wrote in a separate concurrence. "As Thomas Sowell noted 30 years ago, 'Most black people have faced too many grim, concrete problems to be romantics.'"
In Lawrence v. Texas (2003), Thomas dissented from the Court's decision striking down Texas's sodomy laws, stating that although he felt the laws were "uncommonly silly" and deserved to be repealed, these matters would be best left to the legislature or the public, not the courts.
In Hamdi v. Rumsfeld (2004), Thomas was the only justice who sided with the government and the Fourth Circuit's ruling, based on his view of the important security interests at stake and the President's broad war-making powers.
Thomas is frequently at odds with the majority of the court, often found at the dissenting end of many a 7-2 or 8-1 opinion. In 2003, for example, he was on the dissenting side of 21 of the 41 contested (non-unanimous) cases, making him the most frequently dissenting justice of the term, followed by Justice Scalia with 16 dissents. (Source: New York Times, 7/1/03)
[edit]
Unexpected Rulings
In some cases, Thomas?s commitment to a textualist and originalist philosophy leads him to take positions some find surprising. His supporters say this proves Thomas is not an ideologue.
For example, in United States v. Hubbell (2000), the Court heard a case involving Webster Hubbell, who had been indicted for various fraud charges based on his own documents that the government had subpoenaed. Even though the Fifth Amendment provides that no person ?shall be compelled in any criminal case to be a witness against himself,? the Supreme Court has, since 1976, applied the so-called ?act-of-production doctrine.? Under this doctrine, a person can invoke his Fifth Amendment rights against the production of documents only where the very act of producing the documents is incriminating in itself. Thomas wrote a separate concurrence, however, examining a wide range of historical materials on the original meaning of the Fifth Amendment. He concluded that the Constitution should protect against the ?compelled production not just of incriminating testimony, but of any incriminating evidence.?
Another example is Apprendi v. New Jersey (2000), in which the Court considered whether New Jersey?s hate crime statute was unconstitutional. Under this law, once the jury had decided guilt for the underlying crime, the prosecutor could obtain an increased sentence merely by proving the ?hate? motive to a judge at sentencing (where the standard of proof was merely "preponderance of the evidence"). The Supreme Court held that this practice was unconstitutional, because the Constitution?s right to trial by jury requires that any factor which increases a defendant?s sentence beyond a statutory maximum has to be proved to a jury "beyond a reasonable doubt". Again, though, Thomas wrote separately. In his concurrence (which was joined by Scalia), he argued that any facts that might increase a sentence (not just those that increase it beyond the statutory maximum) should have to be proved "beyond a reasonable doubt". In other words, Thomas took a position that was more favorable to the criminal defendant than any of the Court's liberals.
Another example is United States v. Bajakajian (1998), in which Thomas, joined by the four more liberal justices, wrote the first opinion ever to strike down a federal statute as violating the Eighth Amendment?s ?excessive fines? clause. The Court decided that it was an ?excessive fine? under the Eighth Amendment for the government to seize $357,144 in cash from an airport traveler on his way to a foreign country. The man was not a drug courier or a money launderer, and his only crime was that he failed to report to the government that he was carrying more than $10,000 out of the country. Thomas looked to the history and origin of the Excessive Fines Clause, along with 18th-century congressional enactments and 17th-century English cases, in order to conclude that the fine was excessive in proportion to the harm that the government sustained.
Then, in Indianapolis v. Edmond (2000), the Court struck down a police program that used vehicle checkpoints on its roads in an effort to interdict unlawful drugs as being in violation of the Fourth Amendment. The Court took pains to distinguish this case from earlier roadblock cases in which it had upheld police stops to search for drunk drivers and illegal aliens. While Thomas joined Chief Justice Rehnquist's dissent (as did Justice Scalia) on the grounds that the case should be controlled by the precedent of the earlier roadblock cases, Thomas also wrote separately and stated that he was "not convinced" that the precedents had been correctly decided. He stated that "I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."
