Jan Crawford Greenburg has a post on Justice Thomas and precedent. With me, she’s preaching to the choir, and telling me little I don’t know. But I’m a lawyer who follows this stuff closely. I think more Americans need to hear about his theory of judging, so here’s a taste:
[Thomas] suggests he sees real limits on the kind of cases he would seek to overturn–even if he believed they were wrongly decided under the Constitution.
But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.
“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.
“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”
That willingness to “think it through” separates Thomas from Scalia in a number of cases.
One of the examples is the medicinal marijuana case. For a review of how Justice Thomas differed from Justice Scalia in that case, I commend to you my post on the case, which opened by saying:
I have read Gonzales v. Raich. And I’m not happy, either with the decision, or with my (usual) hero Antonin Scalia, who wrote an unconvincing concurrence. But I’m more and more impressed with Clarence Thomas.
I still feel that way.