Media reports on Kavanaugh’s views on executive power too quickly assume he would shield the executive branch during criminal investigations.
On Monday, the New York Times reported that Justice Clarence Thomas asked various questions at oral argument, something he had not done in 10 years. In the first version of the story written by Adam Liptak, the sole explanation offered was one that was not complimentary to the Justice:
It was hard to escape the conclusion that the absence of the voluble Justice Scalia, who had dominated Supreme Court arguments for nearly 30 years on the bench, somehow liberated Justice Thomas and allowed him to resume participating in the court’s most public activity.
I was going to criticize this obvious bias, but when I checked the story again, an additional explanation had been added (without any indication of editing):
Or perhaps Justice Scalia’s death was a sort of passing of the baton, as it left Justice Thomas as the only one member of the court fully committed to the mode of constitutional interpretation known as originalism, which seeks to apply to rulings the understanding of those who drafted and ratified the Constitution. That unaccustomed role may have figured in Justice Thomas’s decision to speak.
Now that was not so hard. Even the New York Times can figure out how to offer noncritical explanations for Justice Thomas’s behavior if it tries hard enough.
There are other possible explanations. To mention just one, perhaps Justice Thomas was paying tribute to his departed colleague, who was quite active from the bench.