Why Scalia and Thomas Won't Always Agree
Justices Antonin Scalia and Clarence Thomas are both “originalists, ” which means they aspire to interpret the Constitution in accordance with its meaning as understood by the drafters of the document. So it is notable and newsworthy when these two justices disagree, as they did recently in the case involving California’s ban on violent video games.
Scalia, writing for a 7-2 court majority, ruled the ban unconstitutional on free speech grounds; Thomas dissented.
Thomas seems to think that free speech rights for children or minors exist only insofar as they are guided and directed by parental authority. Scalia disagrees. Why are these two originalists at loggerheads in this case? Maybe because they had very different familial upbringings as children.
“In Thomas’ works about the duties of parents,” notes the Washington Post, “it is easy to conjure the image of his iron-willed grandfather, Myers Anderson, who raised Thomas after the justice’s father abandoned the family.
Anderson was a strict disciplinarian who wouldn’t let Thomas play on sports teams or join the Cub Scouts, but who saved Thomas from a life of poverty and neglect, Thomas wrote in his book, em>My Grandfather’s Son<.
“Our encounters with his belt or a switch were far from infrequent, and it soon became clear that he meant to control every aspect of our lives,” Thomas wrote.
Thus, in Thomas’ view:
The Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parent.
As a consequence, I do not believe that laws limiting such speech -- for example, by requiring parental consent to speak to a minor -- “abridg[e] the freedom of speech” within the original meaning of the First Amendment.
Scalia also had a strict and demanding father figure with high expectations; but, unlike Thomas, his childhood was more traditional and less disruptive.
He grew up, for instance, in an intact family, with a mother and a father. Thus, Scalia was not so much (or so obviously) saved by parental authority, as he was guided and nurtured by its love.
Consequently, Scalia grew up playfully rebelling against authority in a way that Thomas -- rightfully and understandably, given his particular family circumstances and grandfather -- would never dare. And this, I believe, has made Scalia more willing to countenance the free speech rights of children or minors.
Consider, for instance, Scalia’s youth as described by Joan Biskupic in her biography, em>American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia<.
Years later, [Scalia’s Aunt], Lenora [Panaro], would recall her nephew from her own perspective and remember him as giving his mother a hard time.
“He was bull-headed. When he wanted to do something, and his parents [did not want him to do it], you had to give him a very, very good argument about why he could not do it…
“You couldn’t say to him, ‘Because I said so.’ We call it in Italian a capo tosta. He had a hard head. You couldn’t dissuade him. He knew what he wanted -- even when he was little.”
Indeed. And so, according to Scalia,
As a means of assisting concerned parents, [the California law] is seriously over-inclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.
I do not mean to reduce intellectually powerful Supreme Court decisions to exercises in pop childhood psychology. That would be way too simplistic and absurd.
But when America’s foremost originalists legitimately and honestly disagree, I think it’s fair to suggest that the basis of that disagreement might lie not in the actual text of the Constitution, but in the circumstances of birth, family, and upbringing.
John Guardiano blogs at www.ResoluteCon.Com, and you can follow him on Twitter: @JohnRGuardiano.