The Thomas Mini-Enigma in NAMUDNO

I went back and re-read Justice Thomas’s concurrence in NAMUDNO. I just now noticed that Justice Thomas, like Heather Gerken and Ellen Katz, reads the majority opinion as a warning to Congress: “The Court quite properly alerts Congress that s 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”
But I was also struck by something else. Yesterday I noted how weak the statutory argument embraced by the 8 Justices really was, and questioned by Justice Scalia signed on to it. What is curious about Justice Thomas’s concurrence is that he completely avoids expressing an opinion on the statutory interpretation question. That’s not Justice Thomas’s usual way of writing separate opinions. If you think of Shrink Missouri, for example, he knocks down arguments in the alternative (as in, even if Buckley were accepted as good law, the majority’s approach….). It would have been like shooting fish in a barrel for Justice Thomas to demolish the majority’s statutory interpretation argument, but he did not do so. Perhaps he’s the Justice who has shown the most restraint of all, despite the fact that he reaches the most radical decision: declaring section 5 unconstitutional. Did he not want to embarrass the Chief Justice?

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