Supreme Court Justice Samuel Alito has been closely associated with an approach to constitutional interpretation commonly referred to as judicial minimalism, in which a justice will decide a case on the narrowest basis possible. As he put it in his majority opinion in NASA v. Nelson (2011), the Court should decide only the narrowest question “before us and leave broader issues for another day.” However, his concurrence in the judgment recently in Bond v. United States (2014) raises an interesting question: Is he beginning to waver from his commitment of judicial minimalism?
I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.
Jeffrey Toobin’s recent article in The New Yorker, “Clarence Thomas’s Disgraceful Silence,” is itself disgraceful. Toobin noted that, as of February 22, eight years have passed since Justice Thomas last asked a question during a Supreme Court oral argument. Toobin finds Thomas’s silence “bizarre” and “downright embarrassing, for himself and for the institution he represents.”
This discussion with Professor Ralph Rossum of Claremont McKenna College explores the jurisprudence of Supreme Court Justice Clarence Thomas. Rossum posits that Justice Thomas practices an "original general meaning" approach that seeks concord among the three major strands of originalist theory. Justice Thomas incorporates both the framers' original intent and that of the states' constitutional ratifying conventions, as well as Justice Antonin Scalia's public meaning methodology. Thus Justice Thomas, rather than standing underneath the stature of Justice Scalia, among others, may have a far richer constitutional hermeneutic than many of his originalist brethren. Rossum also discusses Justice Thomas' appeals to…