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Thomas takes a broader view of state sovereignty over intrastate activities against encroachment by the federal government. In ''[[Gonzales v. Raich]]'', 545 U.S. 1 (2005), Thomas dissented from the Court opinion that upheld a federal law that interfered with California's legalization of marijuana for alleged medical purposes. In other words, Thomas felt that the federal government lacked the power to interfere with state sovereignty over this intrastate activity. Scalia, in contrast, joined the majority of the Court in upholding application of federal law to destroy marijuana plants grown lawfully under California law.

Thomas takes a broader view of state sovereignty over intrastate activities against encroachment by the federal government. In ''[[Gonzales v. Raich]]'', 545 U.S. 1 (2005), Thomas dissented from the Court opinion that upheld a federal law that interfered with California's legalization of marijuana for alleged medical purposes. In other words, Thomas felt that the federal government lacked the power to interfere with state sovereignty over this intrastate activity. Scalia, in contrast, joined the majority of the Court in upholding application of federal law to destroy marijuana plants grown lawfully under California law.

Thomas also has taken more [[conservative]] positions than Scalia has. Thomas alone embraced a [[conservative]] view of the [[Second Amendment]]. In ''[[Printz v. United States]]'', Thomas wrote a concurrence strongly suggesting a [[conservative]], individual-rights view of the [[Second Amendment]]. No other Justice on the Court joined that concurrence. Only Thomas has expressed disagreement with the "aggregation principle" used to expand [[federal]] power based on the [[Commerce Clause]].<ref>[[United States v. Lopez]], 514 U.S. 549, 600, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) (concurring opinion).</ref>

Thomas also has taken more [[conservative]] positions than Scalia did. Thomas alone embraced a [[conservative]] view of the [[Second Amendment]]. In ''[[Printz v. United States]]'', Thomas wrote a concurrence strongly suggesting a [[conservative]], individual-rights view of the [[Second Amendment]]. No other Justice on the Court joined that concurrence. Only Thomas has expressed disagreement with the "aggregation principle" used to expand [[federal]] power based on the [[Commerce Clause]].<ref>[[United States v. Lopez]], 514 U.S. 549, 600, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) (concurring opinion).</ref>

Justices Thomas and Scalia differ on the issue of free speech and pornography. Thomas provided the crucial fifth vote in ''United States v. Playboy Entm't Group'', 529 U.S. 803 (2000), which rejected indecency regulation of cable television in part because "[t]he question is whether an actual problem has been proved in this case. We agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban."<ref>529 U.S. at 822-23.</ref> Scalia dissented, expressly his view that the government has broader powers under the [[First Amendment]] to regulate indecency on cable television.

Justices Thomas and Scalia differ on the issue of free speech and pornography. Thomas provided the crucial fifth vote in ''United States v. Playboy Entm't Group'', 529 U.S. 803 (2000), which rejected indecency regulation of cable television in part because "[t]he question is whether an actual problem has been proved in this case. We agree that the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban."<ref>529 U.S. at 822-23.</ref> Scalia dissented, expressly his view that the government has broader powers under the [[First Amendment]] to regulate indecency on cable television.

Thomas again provided the key fifth vote in ''[[Ashcroft v. ACLU]]'', 542 U.S. 656 (2004), which invalidated as unconstitutional a federal law criminalizing the posting on a commercial website of pornography harmful to minors unless there were protections against access by minors. The 5-4 Court placed the burden on parents to keep their children away from pornographic sites, rather than allowing Congress to place the burden on pornographers to limit access to their sites. Scalia, Justice [[William Rehnquist]], Justice [[Sandra Day O'Connor]] and Justice [[Stephen Breyer]] dissented.

Thomas again provided the key fifth vote in ''[[Ashcroft v. ACLU]]'', 542 U.S. 656 (2004), which invalidated as unconstitutional a federal law criminalizing the posting on a commercial website of pornography harmful to minors unless there were protections against access by minors. The 5-4 Court placed the burden on parents to keep their children away from pornographic sites, rather than allowing Congress to place the burden on pornographers to limit access to their sites. Scalia, Justice [[William Rehnquist]], Justice [[Sandra Day O'Connor]] and Justice [[Stephen Breyer]] dissented.

Thomas tends to oppose government power more often than Scalia does. In a 5-4 decision written by Thomas, from which Scalia dissented, Thomas held that the [[United States]] was wrong to seize $357,144 in cash from a traveler simply because he failed to report it as required by law. Thomas, writing for the Court, held that such a forfeiture "would violate the Excessive Fines Clause of the [[Eighth Amendment]] ... because full forfeiture of respondent's currency would be grossly disproportional to the gravity of his offense."<ref>''United States v. Bajakajian'', 524 U.S. 321, 324 (1998).</ref>

Thomas tends to oppose government power more often than Scalia did. In a 5-4 decision written by Thomas, from which Scalia dissented, Thomas held that the [[United States]] was wrong to seize $357,144 in cash from a traveler simply because he failed to report it as required by law. Thomas, writing for the Court, held that such a forfeiture "would violate the Excessive Fines Clause of the [[Eighth Amendment]] ... because full forfeiture of respondent's currency would be grossly disproportional to the gravity of his offense."<ref>''United States v. Bajakajian'', 524 U.S. 321, 324 (1998).</ref>

Thomas is more likely than Scalia to enforce a statute that is wrong as a matter of policy, as Thomas is more likely to hold that [[Congress]] alone can fix its own law.<ref>''[[Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC]], Inc.'', 546 U.S. 164 (2006).</ref>

Thomas is more likely than Scalia was to enforce a statute that is wrong as a matter of policy, as Thomas is more likely to hold that [[Congress]] alone can fix its own law.<ref>''[[Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC]], Inc.'', 546 U.S. 164 (2006).</ref>

Thomas has called for ending a right of [[free speech]] for students in [[public school]], and stated his view that ''[[Tinker v. Des Moines Independent Community School Dist.]]'', 393 U.S. 503 (1969), "is without basis in the Constitution" and should be overruled.<ref>[[Morse v. Frederick]], 127 S. Ct. 2618, 2630 (2007) (Thomas, J., concurring).</ref> Neither Scalia nor any other [[conservative]] has yet supported this position of Thomas.

Thomas has called for ending a right of [[free speech]] for students in [[public school]], and stated his view that ''[[Tinker v. Des Moines Independent Community School Dist.]]'', 393 U.S. 503 (1969), "is without basis in the Constitution" and should be overruled.<ref>[[Morse v. Frederick]], 127 S. Ct. 2618, 2630 (2007) (Thomas, J., concurring).</ref> Neither Scalia nor any other [[conservative]] has yet supported this position of Thomas.

On the [[Negative Commerce Clause]], Thomas is more reliable than Scalia in defending state laws that discriminate against out-of-state companies. Thomas, for example, wrote the dissent in the 5-4 decision invalidating a Michigan law that limited shipments by out-of-state wineries.<ref>''[[Granholm v. Heald]]''</ref> Scalia split from Thomas and surprisingly joined the more [[liberal]] majority in that case, which was presented using the issue of the [[Negative Commerce Clause]] but then decided based on slightly different grounds.

On the [[Negative Commerce Clause]], Thomas is more reliable than Scalia was in defending state laws that discriminate against out-of-state companies. Thomas, for example, wrote the dissent in the 5-4 decision invalidating a Michigan law that limited shipments by out-of-state wineries.<ref>''[[Granholm v. Heald]]''</ref> Scalia split from Thomas and surprisingly joined the more [[liberal]] majority in that case, which was presented using the issue of the [[Negative Commerce Clause]] but then decided based on slightly different grounds.

On the issue of compelled speech, Thomas is stronger than Scalia in defending a [[First Amendment]] right not to pay for something with which one disagrees :<ref>[[United States v. United Foods]], 533 U.S. 405, 418-19 (2001) (Thomas, J., concurring)</ref>

On the issue of compelled speech, Thomas is stronger than Scalia was in defending a [[First Amendment]] right not to pay for something with which one disagrees :<ref>[[United States v. United Foods]], 533 U.S. 405, 418-19 (2001) (Thomas, J., concurring)</ref>

{{cquote|I write separately, however, to reiterate my views that "paying money for the purposes of advertising involves speech," and that "compelling speech raises a First Amendment issue just as much as restricting speech." Id. at 504 (THOMAS, J., dissenting). Any regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny.}}

{{cquote|I write separately, however, to reiterate my views that "paying money for the purposes of advertising involves speech," and that "compelling speech raises a First Amendment issue just as much as restricting speech." Id. at 504 (THOMAS, J., dissenting). Any regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny.}}