The Court's Mr. Right.

Clarence Thomas makes his mark.

Mr. Troy practices constitutional law in Washington, D.C., and is an associate scholar at the American Enterprise Institute. He is the author of Retroactive Legislation.

In late May, the Washington Post carried a front-page story headed "After a Quiet Spell, Justice Finds Voice; Conservative Thomas Emerges from the Shadow of Scalia." Joan Biskupic, the Post's Court-watcher, contended that "increasingly, Thomas has been breaking from Scalia, taking pains to elaborate his own views and securing his position as the most conservative justice on the court." It's true that during the recently concluded Supreme Court term, Clarence Thomas bolstered his standing as the Court's greatest champion of the belief that the Constitution should be interpreted according to the original understanding of its text. Many conservative legal analysts who once turned directly to the opinions of Justice Antonin Scalia to find out the "right" answer now go straight to Thomas.

But that's been true for years. Contrary to the Post's suggestion, Thomas was never a "clone" or "puppet" of the "forceful, fiery-tempered Scalia." He was never Scalia's "shadow." So Scott Gerber demonstrates in First Principles: The Jurisprudence of Clarence Thomas, an excellent and balanced review of the justice's first five years on the Court. During those five years, Thomas and Scalia voted together 80 percent of the time. But Justices Stephen Breyer and Ruth Bader Ginsburg, President Clinton's appointees, voted with Justice David Souter (the Court's most liberal member) 84 and 80 percent of the time, and nobody ever called them Souter clones.

It would not be unusual for a judge to have gained confidence over his years on the bench. But Thomas had an unusually strong start. Even during his "acclimation period," Gerber observes, "senior members of the Rehnquist Court did not appear reluctant to assign Justice Thomas the opinion for the Court," including assignments in important cases. Gerber also shows that Thomas was unafraid to speak out on significant issues. As he concludes, "Thomas is not simply . . . Scalia's loyal apprentice-no matter how vociferously some seek to establish and maintain this myth. Justice Thomas is his own man, with his own jurisprudence."

Thomas and Scalia did indeed disagree in more high-profile cases than usual during the last term. But the explanation may be simply that the term presented more cases in which Thomas's views differed from Scalia's. As Gerber says, Scalia increasingly resorts to "some sort of Burkean 'conventionalism' in which the meaning of a particular provision of the Constitution is defined by the consensus view of the existing political community." From his earliest days on the Court, Thomas has focused more on the original meaning of the constitutional text and has thus been more willing to overturn precedents he considers inconsistent with it-even if the line of cases he is opposing goes back to previous centuries. His approach is therefore more likely than Scalia's to win applause from those who believe that the modern Supreme Court has gone dramatically off track, though both approaches have conservative adherents.

One case that made the Post take notice of the Scalia-Thomas divide was Saenz v. Roe. At issue was whether California could try to stop being a "welfare magnet." The state wanted to limit recent emigrants from other states to the same level of benefits they received in their old homes rather than pay them California's more generous benefits. The Supreme Court, by a vote of 7-2, held that such discrimination violates the "right to travel," which partially rested on the Fourteenth Amendment's declaration that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Thomas dissented, denying that welfare is a "privilege" of California citizens.

But he did not stop there. He charged that an earlier Court had "all but read the Privileges and Immunities Clause out of the Constitution" in the Slaughter-House Cases of 1873. As a result, later Courts have tried to read some of that clause's substance back in through dubious interpretations of the other clauses of the Fourteenth Amendment (the equal-protection and due-process clauses)-a tactic that has enabled the Court to reach many liberal policy outcomes that were not really entailed by the amendment at all. In the California case, wrote Thomas, the Court appeared to "breathe new life into the [Privileges and Immunities] Clause," but without addressing its "historical underpinnings or its place in our constitutional jurisprudence." Thomas then extended an offer that, if accepted, would radically reshape constitutional law:

Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions of our equal protection clause and substantive due process jurisprudence.

To the surprise and mild chagrin of many conservative Court-watchers, Scalia joined the majority without comment.

In another case this past term, Mitchell v. United States, Thomas again showed greater boldness than Scalia, calling for a fundamental re- evaluation of the Court's approach to the Fifth Amendment right against self-incrimination. Both justices challenged the Court's 1965 holding that a jury may not interpret a defendant's refusal to testify as an indication of guilt. But while Scalia argued only that the Court should not extend that interpretation (to prohibiting judges from considering a defendant's refusal to testify in setting punishments), Thomas was willing to take the next step of urging the abandonment of the 1965 ruling altogether.

This willingness to challenge well-established precedent is a Thomas trademark. In 1998, Thomas alone was willing to reconsider a 1798 decision that applied the Constitution's bar on ex post facto laws to criminal laws only-a decision that opened the door to retroactive tax increases and retroactive impositions of civil liability (as in the Superfund law). Overturning it would be in keeping with the Framers' concern about the government's ability to upset settled expectations with regard to property rights, and thus might also lead to a rethinking of the purpose of the Constitution's ban on uncompensated takings and its prohibition on the impairment by states of the obligation of contracts.

Thomas's openness to reconsidering precedent has important jurisprudential implications. For example, it has enabled him to be among the most ardent advocates of free-speech rights on the Court, often surpassing Scalia. To illustrate, this past term Thomas reaffirmed his commitment to the view that advertising, which the Supreme Court calls "commercial speech," should not be treated, as it is now, as the poor stepsister of political, artistic, and scientific speech. This builds on a 1996 case in which Thomas, citing historical sources concerning the Framers' worldview and the drafting of the First Amendment, concluded that there is "no philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial speech.'" Thomas is, accordingly, now the Court's strongest advocate of the right to advertise.

For his part, Scalia said in 1996 that he "shared Justice Thomas's discomfort" with the Court's approach of "balancing" the government's interests against those of the speaker. But Scalia wanted to know more than Thomas. For example, Scalia wanted to look into the state laws governing advertising during the 1790s and 1860s when the First and Fourteenth Amendments were ratified. Scalia also wanted to know about "any national consensus that had formed regarding state regulation of advertising after the Fourteenth Amendment and before this Court's entry into the field." This kind of inquiry, in support of the "Burkean conventionalism" Gerber identified, seems of little interest to Thomas.

In most cases, Thomas and Scalia have voted the same way, even when their reasoning has differed. The tension between originalism and conventionalism, however, caused them to split on 1995's McIntyre v. Ohio Elections Commission, with Thomas supporting the view that the First Amendment protects anonymous political leafleting. Distancing himself from the majority's precedent-driven approach, Thomas examined such evidence as the fact that the Federalist Papers were published under the pseudonym "Publius." He concluded that "the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights."

Disagreeing, Scalia argued that the prevalence of anonymous electioneering at the time of the First Amendment's ratification did not mean that the Constitution guaranteed the right to do so. He pointed to the "widespread and longstanding traditions of our people" manifested in a "governmental practice that has become general throughout the United States" banning anonymous electioneering. The split over McIntyre highlights a facet of Thomas's thought that helps to explain his greater openness to overturning precedents: He seems more convinced than Scalia that history can settle the meaning of the Constitution's text.

Of course, such divisions can easily be overstated. Perhaps no other pair of justices shares a common vision to the extent that Thomas and Scalia do. Nor are we to conclude that Thomas is always right, even from a conservative perspective. As the Scalia-Thomas divide illustrates, even like-minded judicial conservatives can have dramatic differences of opinion about how to interpret the Constitution, and particularly about when to adhere to precedent. Moreover, Thomas is not always more "conservative" than Scalia. To take just one example, Scalia has radically reshaped the way statutes are interpreted by stressing the value of the plain meaning of a law and the unreliability of certain legislative materials, such as committee reports. Many legal conservatives agree with Scalia. Yet Scalia continues to be the lone justice refusing to join even a portion of any Supreme Court opinion that relies on such legislative materials.

The divisions that do exist between Scalia and Thomas are a matter of temperament as well as philosophy. Scalia is rumored to be thinking of retirement sometime during the next president's term, owing to his frustration with the Court. Given the fragility of the moderately conservative current 5-4 majority, a Democratically appointed replacement for Chief Justice Rehnquist or Sandra Day O'Connor would cast the 63-year-old Scalia into the minority for the rest of his career, a prospect he could hardly relish. By contrast, at 51, Thomas is young enough to outlast a new liberal majority. He seems to be in for the long haul.

Scott Gerber writes that, from 1991 to 1995, "in the aggregate, Justice Thomas was the most conservative Rehnquist Court justice." Thomas's performance this past term-particularly in Saenz v. Roe-confirms that judgment. One can only hope that the combination of the 1999 term, Gerber's book, and the growing distance from the horrible battle over Thomas's confirmation will engender more appreciation for Thomas's bold and conservative contributions to the law.