Georgia v. McCollum, 505 U.S. 42 (1992)

The second case in which Scalia and Thomas each write separate opinions not joined in full by the other, this is the first case in which they are on opposite sides.

Blackmun delivers the opinion of the Court, joined by Rehnquist, White, Stevens, Kennedy, and Souter.

Rehnquit files a concurring opinion.

Thomas files an opinion concurring in the judgement only.

O'Connor files a dissenting opinion.

Scalia files a dissenting opinion.

The Court rules that the Constitution's Equal Protection Clause prohibits a criminal defendant from using peremptory challenges to exclude jurors on account of race. A defendant can use his limited number of peremptory challenges for no reason or any reason (he doesn't have to have cause) -- as long as that reason is not the race of the prospective juror. Neither Scalia nor Thomas believes that's that what the Constitution actually says.  Both express concern about the decision's effect on defendants' rights, although Thomas is more interested in the plight of black defendants than Scalia is. Most of Thomas' concurrence is devoted to criticizing the Court's "continuing attempts to use the Constitution to regulate peremptory challenges," and this portion of his concurrence is longer than Scalia's entire dissent. So then why does Thomas concur in the Court's judgment, and Scalia dissent (and not even "respectfully," as is customary and as O'Connor did in her longer dissent)? While Scalia "agree[s] with the Court that its judgment follows logically from Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)" -- where the Court held that the Equal Protection Clause prohibits a private litigant in a civil case from using peremptory challenges to exclude jurors on account of race -- Scalia believes "that a bad decision should not be followed logically to its illogical conclusion."

"Because the respondents do not question Edmonson," Thomas, however, "believe[s] that we must accept its consequences."  Is Thomas accepting Edmonson's consequences simply because the challengers are not questioning Edmonson?  Since this is his first term on the Court, Thomas may be reticent to decline to extend a decision reached just the previous term. Scalia, however, has been on the Court for a little more than half a decade. Additionally, he was on the Court when it decided Edmonson, and he was in the dissent.  Now, he has the precedent, so to speak, of his own dissent to rely on. Thomas has been accused of not believing in precedent.  In Ken Foskett's biography, Judging Thomas: The Life and Times of Clarence Thomas, even Scalia is quoted as saying, "Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right." This case shows that that's simply not the case. Nevertheless, perhaps even in this case, Scalia is more committed to precedent than Thomas -- just not the precedent of recent Supreme Court decisions (1986, 1991) -- but rather the precedent of "the ages old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair."