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Old October 27, 2020, 10:28 AM   #100
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Join Date: December 13, 2005
Posts: 4,047
Originally Posted by AB
I have always considered Antonin Scalia to be of that textual school, but perhaps I have been mistaken?
No, you aren't mistaken. The difference is in degree of application and whether they write with an eye toward gathering a majority.

The Scalia/Thomas split is illustrated in Raich. Scalia upholds a federal exercise of power over purely local conduct as within the Commerce Clause power because Congress targeted the conduct in question as part of a detailed regulatory scheme about a product in interstate commerce. He defers to Congress, and congressional findings, which is very conventional, and builds on the Wickard observation of an attenuated link to interstate commerce. Where Scalia accepts Wickard, Thomas addresses the underlying issue of what "interstate" and "commerce" mean.

I enjoy Scalia's decisions for the qualities of his writing; they can be sharp and funny, much like the man, and a great read if you enjoy that sort of thing. Scalia wrote for the majority in that case.

Thomas wrote a one man dissent, and has written lots of one man concurrences and dissents. They aren't inspiring rhetoric, but they do demonstrate an independent path less influenced stare decisis.

Does Thomas write that way because he doesn't have even a chance of getting a majority behind him on close controversies? Is that kind of internal political calculus behind Roberts' failures? I think both can plausibly be answered "yes". Maybe ACB will change some of the patterns we've seen from both Roberts and Thomas.
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