Dissimilarities Between Scalia and Thomas

In the post-Ronald Reagan era of the Supreme Court of the United States, two of the most preeminent jurists of conservative persuasion have been the Associate Justices Antonin Scalia and Clarence Thomas. Scalia, who was an incumbent justice from 1986 until his untimely demise in 2016, and Thomas, who, at the time of the composition of this discourse, has served on the bench since 1991, have both indelibly marked the Court with their conservative exegesis of the Constitution and robust adherence to originalism. For an extended period, Thomas was frequently perceived as a “foil” of Scalia, owing to his reticent demeanor during oral arguments and his uncompromising conservative inclinations. The moniker “Scalia-Thomas” was even employed in a pejorative sense by some to characterize the two justices and their conservative perspectives. Although they shared several similarities, there were also discernible differences between Scalia and Thomas, which will be the subject of a multi-part treatise that will examine each case in detail.

Part I of III: Hamdi v. Rumsfeld (2004)

Hamdi v. Rumsfeld was one of the seminal Supreme Court of the United States cases, relating to matters of national security, which were adjudicated during the presidency of George W. Bush. This case, along with others such as Hamdan v. Rumsfeld, Boumediene v. Bush, and Rasul v. Bush, concerned the augmentation of executive power that had transpired in the aftermath of the 9/11 attacks, leading to a proliferation of surveillance operations. In Hamdi v. Rumsfeld, the Supreme Court concurred that the United States government had the prerogative to detain enemy combatants, even if they held American citizenship. Nevertheless, the Court also acknowledged that American citizen-detainees must possess the right to due process and the ability to dispute their classification as enemy combatants before a neutral and impartial adjudicative body.

The crux of the matter in Hamdi v. Rumsfeld lies in the following factual circumstances. Yaser Esam Hamdi, a native-born citizen of the United States, was apprehended in Afghanistan in 2001 and underwent detention as an illicit enemy combatant, with subsequent internment at Guantanamo Bay. The Bush administration sought to detain Hamdi as an enemy combatant, sans access to the customary legal remedies, due to his alleged armed opposition to the government; however, his family repudiated these allegations and maintained that he was in Afghanistan for humanitarian purposes. The government maintained that the authority to circumvent legal due process was imperative for the prosecution of the War on Terror, as declared by the Congress following the 9/11 attacks, and was, furthermore, completely constitutional until the US government deemed that terrorists were no longer a significant threat.

The writ of habeas corpus, on behalf of Hamdi, was instituted by his father and was initially granted by the District Court for the Eastern District of Virginia, which ordered for access to a federal public defender. However, this writ was later dismissed by the Fourth Circuit Court of Appeals. In 2004, Hamdi was repatriated to Saudi Arabia, conditioned upon his renunciation of American citizenship and the imposition of travel restrictions. The District Court, to which the case was remanded, determined that Hamdi’s detention was premised upon hearsay and lacked substantial evidentiary support. The case was again remitted to the Fourth Circuit, which overturned the District Court’s decision on the grounds that it was undisputed that Hamdi had been apprehended in an active combat zone. The Fourth Circuit held that the circumvention of due process was constitutional, in accordance with Article Two of the US Constitution, which delegates war-making powers to the President. Subsequently, the case was brought before the Supreme Court on appeal.

The majority ruling, authored by Justice Sandra O’Connor, and joined by Justices Rehnquist, Breyer, and Kennedy, cited the case of Mathews v. Eldridge to establish that the termination of statutorily granted rights implicates due process, but does not necessitate a pre-termination hearing. On this basis, O’Connor determined that although Congress had authorized the detention of enemy combatants, Hamdi was entitled to a meaningful opportunity to contest his combatant status through the principles of due process. The majority’s ruling agreed with the precedent established in Youngstown Sheet & Tube Co. v. Sawyer, which delimited Presidential authority in the absence of Congressional authorization. Justice O’Connor viewed the retention of the writ of habeas corpus as a vital bulwark against executive power. Justice Souter, in concurrence with Justice Ginsburg, agreed with the majority’s determination that due process was necessary, but went further to argue that Congressional authorization for the indefinite detention of enemy combatants was not legally tenable.

Justice Scalia’s viewpoint, concurred in by Justice Stevens, was characterized by a stringent limitation of executive power to detain. Scalia posited that the majority’s verdict was less anchored in legality and more driven by a benevolent compassion for potentially blameless detainees. According to Scalia, the judiciary’s purview was limited to pronouncing the detention as unconstitutional and to issuing a directive for Hamdi’s discharge or arrest; however, the determination of the type of detention permitted was not within the jurisdiction of the court. Scalia asserted that the determination of detention’s legality was contingent upon either Congress’s suspension of habeas corpus or Hamdi’s indictment under the criminal code. Adhering to his originalist philosophy, Scalia claimed that indefinite detention on treasonous charges was historically limited to a term of three to six months, and that habeas corpus suspension could only be ratified for that specified duration.

On the other hand, Justice Thomas dissented and sided with the US government, and mentioned that many legal standards applicable in ordinary times could not be applied in war times. As per Justice Thomas, the majority ruling would mean that if the US military, acting on behalf of the State, bombed any area, they would have to first ensure due process rights for bombing targets.

This case is interesting because it allows us to look at how two self-professed ‘originalists’ could approach a case entirely differently. Justice Scalia’s main issue with a lot of the rulings of the more liberal bloc was the basis on which the rulings were made – for him, the pragmatic approach of, say, Justice Breyer, that focused on the effects of the rulings on the people involved, was unsound as it involved arbitrariness of standards imposed and judges playing the role of rule-makers. Justice Scalia wants the Court to have a minimal role, where the Court only determines if an action is constitutional or not. His determination of whether something is constitutional or not, depends on an originalist analysis on whether the executive action adhered to the historically understood sense of the underlying constitutional principle.

Justice Thomas presents a cynical perspective regarding the subject matter at hand. In his view, the exigencies of warfare render conventional legal norms inapplicable. One could interpret Justice Thomas’ stance in two manners – either with consternation at the brazen denial of rudimentary due process rights to American citizens based solely on their alleged status as enemy combatants, or with approval of his pragmatic appreciation of the limitations of legal procedures, which are nothing but tools to achieve specific objectives, and are simply inconsequential in times of war. It is indeed remarkable that despite occupying a position within the entrenched bureaucracy of government, Justice Thomas displays a remarkably skeptical attitude towards due process.

Angikar Ghosal is from Calcutta, India, studying Mathematics and Computer Science