Justice Thomas: Liberal?

Over at Slate, freelance writer Mark Joseph Stern, has an article examining the supposedly surprising jurisprudence of Justice Thomas:

Supreme Court Justice Clarence Thomas is frequently accused of being a partisan hack, a conservative lackey serving only the interests of the Republican Party. His votes are often portrayed as products of political ideology rather than constitutional philosophy, a practice he only encourages with his forays into political commentary. But as his recent opinions in Alleyne v. United States and the Myriad gene-patenting case illustrate, Thomas is much more than a Tea Party mouthpiece. That his views skew conservative is a product not of partisanship but rather of his deep, occasionally confounding dedication to originalist theory. And sometimes that dedication leads this already idiosyncratic justice to cast votes that would please Earl Warren.

Reader(s)™ will recognize this as a recurring theme of this blog, and I'm happy to see this published at Slate, which is generally a hotbed of the cynical, personality-focused coverage of the Supreme Court that I detest.

But the article contains at least one egregious error in its discussion of Justice Thomas's views on the Eighth Amendment, which Mr. Stern says include approval of "astonishingly torturous methods of capital punishment":

More than any justice in history, Thomas is an originalist, ruling exclusively by the letter of what he views as the Founders’ original intent in writing the Constitution. Because the Founders, for example, condoned “public dissection” and the “embowelling [sic] alive, beheading, and quartering” of prisoners, so too does Thomas.

This is laughably incorrect. The supposed source for this assertion is Justice Thomas's concurrence in Baze v. Rees, but Mr. Stern interprets the concurrence, um, incorrectly. Justice Thomas does discuss "embowelling alive, beheading, and quartering" of convicts, but not as examples of practices the Founders condone. On the contrary, he discusses these practices as the very "cruel and unusual" punishments he believes the Eighth Amendment was intended to outlaw:

That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment . “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54.

One such “tool” was burning at the stake. Because burning, unlike hanging,  was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72.

Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, see id., at 72–74, and “public dissection,” a punishment Blackstone associated with murder, 4 W. Blackstone, Commentaries 376 (1769) (hereinafter Blackstone). But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors. “The punishment of high treason,” Blackstone wrote, was “very solemn and terrible,” id., at 92, and involved “embowelling alive, beheading, and quartering,” id., at 376.

* * * 

Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause.

So, while the article is a welcome corrective to the usual lazy reportage on Justice Thomas, it could sure use some fact checking.

Breyer versus Scalia

The current Supreme Court has two intellectual giants: Stephen Breyer and Antonin Scalia. Justice Scalia is a powerful and public advocate for textualism and originalism as tools of constitutional interpretation. Justice Breyer is an equally ardent advocate for an opposing theory of constitutional interpretation that he calls "active liberty," which is essentially pragmatism.

A common criticism of Justice Scalia is that his theories of constitutional interpretation are just politics by other means. Because he is a conservative, the argument goes, it is no surprise that he espouses interpretative principles that require fealty to the ideas of long-dead, slave-holding white men. The common rejoinder is to point out areas where Justice Scalia's avowedly neutral principals lead him to results that are at odds with the policy preferences of modern conservatives. This happens, for example, in cases concerning questions of constitutional criminal procedure, particularly the constitutionality of various searches and seizures under the Fourth Amendment.

Justice Breyer's pragmatic approach to the constitution is open to the attack that it is just intellectual cover for imposing his policy preferences. This is Scalia's own criticism, in fact, and it stings. But Justice Breyer can also point to cases where his vote or his opinion did not comport with the policy preferences of modern liberals. Indeed, the Fourth Amendment is such an area. As Professor Orin Kerr points out, Breyer and Scalia have been on opposite sides of every contested Fourth Amendment case this term:

Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term: King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

What gives?

One possibility is that these Fourth Amendment cases don't really trigger a liberal / conservative divide. Since Bill Clinton's move to the center in the 1990s, both Republican and Democrats have become "law and order" parties. The cops have won over everyone but the libertarians, and perhaps Scalia has libertarian policy preferences and Justice Breyer has the standard bipartisan, authoritarian policy preferences.

I don't think that's right, though. Libertarianism is not a consistent strain in Justice Scalia's stated worldview. For example, his views on morals legislation, particularly in the realm of gay rights, have no room whatsoever for libertarianism.

Professor Kerr has an interesting hypothesis:

What explains the trend? It might just be a coincidence. But I suspect some of it reflects the fact that a lot of the recent cases have involved Fourth Amendment balancing. Scalia dislikes balancing, while Breyer revels in it. Those different instincts may pull their votes in different directions. Also, defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing. So we’re seeing more defense-side briefs targeting Scalia’s vote. But the problem is that Scalia and Breyer look at Fourth Amendment cases in exactly opposite ways. The kind of argument that appeals to Scalia can lose Breyer, and the kind of argument that appeals to Breyer can lose Scalia.

This gets right to the heart of the Scalia / Breyer divide. Scalia, as a textualist, wants to derive the results directly from the words of the law, so believes that those words should be interpreted to compel clear results. Breyer, the pragmatist, sees the words as a starting point for an analysis of consequences, among other things. The words have value—for to reach a result starkly contrary to them would be imprudent because it would bring the law into disrepute—and clarity has value, but what matters ultimately is providing guidance on how to reach the most just results in the most cases. Thus, balancing tests.

All of which is to say that I think both Justice Scalia and Justice Breyer are, fundamentally, intellectually honest judges who generally adhere to powerfully reasoned and coherent views of constitutional interpretation.

A rant

On Slate, Dahlia Lithwick reviews Justice Breyer's new book, Active Liberty Making Our Democracy Work.  I found it to be a frustrating review, mainly because Lithwick advances a thesis--that Breyer and Scalia are more similar than you might imagine--that she actively contradicts.  There is also some sloppy, hard-to-understand writing.  The version of the article I read contained two glaring typos (since fixed), making me wonder if I was reading a blog post rather than a published article.  (Fyi, typos are perfectly acceptable in blog posts.)  The article also contains this indecipherable paragraph: