Scalia Returns to Form, Thomas Sucker Punches Scalia’s Prodigality

Posted in Case Reports by Mike Sacks on January 19, 2011

Today’s unanimous decision in NASA v. Nelson–see here for my oral argument recap from October–held that the government has the power to conduct full background checks despite the argument by employees of NASA’s Jet Propulsion Lab that parts of those checks violate their right to “informational privacy.”

Writing for six members of the Court, Justice Alito refused to address whether such a right actually exists, and instead assumed its existence for the sake of rejecting its application to the JPL employees’ claims.  Justices Scalia and Thomas, however, refused to go along with this compromise resolution.  Instead, Scalia, in a separate concurrence joined by Thomas, returned to form with a bruising critique of the Court’s “substantive due process” jurisprudence–the very jurisprudence he adopted to extend the Second Amendment to the states in last year’s oral argument and plurality opinion for McDonald v. City of Chicago.

Nevertheless, Justice Thomas wouldn’t let Scalia return to the fold without reminding Scalia of his last year’s prodigality from their bedrock principles.  I’ll let Josh Blackman take it from here:

Scalia’s opinion returns to his usual antagonism towards substantive due process. Not even a single citation to McDonald. No attempt to reconcile his aberrant opinion in the famed gun case. I suppose that McDonald will be the new Gonzales v. Raich, and we should “just get over it.” (that is Scalia’s common refrain when people ask him to reconcile Raich). As recently as last week, Scalia joined a Thomas dissent from denial of cert, other than a footnote that relied on Raich. As I have written at great length, Scalia’s opinion cannot be explained here. His position is at odds with two decades of jurisprudence, and he makes no effort to explain it. While Thomas cites to McDonald, Scalia ignores it. Scalia’s acquiescence to substantive due process in McDonald cannot be reconciled with his animosity towards that “plastic” standard.

Justice Thomas wrote his own curt one paragraph concurring opinion in judgment.

“I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissent-ing) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . .” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring ofunenumerated rights against the Federal Government “strains credulity foreven the most casual user of words.” McDonald v. Chi-cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).

What does Thomas’ concurring opinion add? Thomas focuses on the fact that the due process clause does not protect unenumerated rights, suggesting that it can protect enumerated rights. Perhaps he is trying to provide cover to Scalia, who joined McDonald’s due process opinion. As I have theorized before, because the Second Amendment is actually enumerated, Scalia may find this approach palatable. I find this distinction unpersuasive. As I have argued before, whether the right is enumerated, or unenumerated, the Court still needs to rely on some nebulous notion of liberty. Thomas may be trying to explain Scalia’s opinion, where Scalia would not do so specifically. In my mind, its not effective. Regardless, not even Thomas would accede to relying on the due process clause to protect an enumerated right. To quote my good friend Mike Sacks, this concurring opinion can best be characterized as a “sucker punch.” Ouch.

The standoff continues.

5 Responses

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  1. Joe said, on January 19, 2011 at 2:49 pm

    Does Thomas’ Constitution not have a 9th Amendment, or what?

    As to substantive due process, it was accepted in the late 19th Century, including by justices who were there at the founding of the 14A. It “strains credulity” to have respect originalism and ignore this fact.

  2. Miguel said, on January 19, 2011 at 3:22 pm

    Nitpick, but an important one: prodigality = wastefulness.The story is called the prodigal son because it tells you the story of the prodigal son, i.e. the wasteful one, the one who blows his part of the money on women, wine, etc, and doesn’t stay at home, responsibly working. He also does wander away, and the KJV famous quotations are about returning to the fold, etc., so it’s a common enough mistake to make. Nevertheless, we readers of F11F demand precision! 😉

  3. Thursday round-up : SCOTUSblog said, on January 20, 2011 at 10:35 am

    […] Washington Times, SCOTUSblog, the Volokh Conspiracy (also here and here), Court Beat, Dorf on Law, First One @ One First, Althouse, JURIST, Concurring Opinions, and Wired have additional coverage of the […]

  4. George said, on January 20, 2011 at 8:56 pm


    Thomas doesn’t complete reject unenumerated rights. For example, I believe in Saenz v. Roe he stated he would be open to exploring whether the Privileges or Immunities Clause, as originally understood, protects unenumerated rights. He merely rejects using the Due Process Clause to invent substantive rights. I believe his language about using the Due Process Clause (“strains credulity for even the most casual user of words.”) merely highlights that it is idiotic to use a clause that protects procedural rights to create substantive rights, and he is spot on.

  5. Joe said, on January 21, 2011 at 3:42 pm

    I’m aware, George, of his statement as to P/I. If so, ““I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy” is misleading, since he has to explain — in a way different from Scalia — WHY he can’t find it, since others have explained in detail [in part using rights he cites] where it can be found.

    Also, as Harlan notes in Poe v. Ullman, Souter in Washington v. Glucksberg, John Orth in a book on Due Process of Law, etc., the substantive content of due process has long been accepted. It was argued by some of the very people strongly behind the 13A and 14A to strike against slavery in the federal territories. It is not “idiotic” by definition.

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