Author: Damien M. Schiff
It has been common for some time among the legal Left to lambaste the Roberts Court's conservative wing, especially Justices Scalia and Thomas, for decisions that allegedly reflect more their personal preferences than the laws' dictates. That criticism seems to me at least to be heightened in part because both Scalia and Thomas profess theories of judging (textualism and "original meaning" originalism) that, on their face, go much further toward excluding personal preference (emphathy, if you like) from the judicial process than any competing theory of interpretation from the Court's liberal wing. (I have elsewhere criticized those competing theories).
Well, this week we've had two decisions from the Supreme Court that would seem to undercut the popular Scalia-Thomas jibe. Yesterday, the Supreme Court ruled in FCC v. AT&T that the Freedom of Information Act's exception for records implicating "personal privacy" does not apply to corporations. Scalia and Thomas joined in the decision. Well, now, where are all those Scalia-Thomas critics who accuse the two of corporate fetishism?
And today, the Court ruled in Snyder v. Phelps that the First Amendment protected the Westboro Baptist Church's picketing of a military serviceman's funeral. Again, Thomas and Scalia joined fully in the decision (over a dissent from fellow conservative Justice Alito). That's certainly not an outcome that one would expect Scalia and Thomas to agree with personally.
Obviously, these are just two cases. But they do establish, in my view, that dismissing Scalia and Thomas as the Right's equivalent of Justice Douglas-style leftist judging is just not tenable.