Not so much a debate, as I’m looking for a how to. I suppose I could butter this up for GQ, but it would probably turn ugly, so just start it out here, and I can say what it is I’d really like to know.
In the Anita Hill/Gini Thomas pit thread, I and others make the claim that Justice Thomas votes with Justice Scalia. We are countered by the pesky fact that this is true “only” 65% of the time, and there are two cases of slightly greater correlation between the votes of two justices. Fair enough as far as that goes, but I suspect there is more to it than this basic statistic indicates.
What I would like to know is what percentage of the time are Justices Thomas and Scalia on the same side of an issue when Thomas’ vote is actually needed for Scalia’s decision to prevail? (“When it counts” in other words) This would nominally be 5-4 decisions, with a few exceptions for when a justice recuses themselves or there is an unfilled seat etc.
I could probably work this out using Exel if I had a spreadsheet of SCOTUS votes. Excepting that, It would take going over every decison, and that sounds like more work than I care to do.
I haven’t really read the other thread, so do you have the cite that they voted together only 65% of the time? Is that leaving out times when they agree in the judgment but write separate dissents or concurrences?
I think there’s all the issue of exclusivity. There presumedly are numerous decisions where a number of justices join in a decision. You might be better off seeing which pair of justices are most common in decisions where they are the only two voting that way.
Clarence Thomas and Antonin Scalia have voted together 1415 times, and been on opposite sides 124 times*. That’s a 92% correlation. I can get a list of cases, but I’d have to look at each one individually to see the vote breakdown.
I’m curious…why would it matter. Unlike elected politicians, who sometimes need political cover and will vote in a way that they don’t believe if it does not affect the outcome, I can’t imagine that a justice would do this for any reason.
I asked awhile ago if SCOTUS justices debate with each other. Apparently (and shockingly to my mind) they don’t seem to have much to do with each other.
As such Scalia and Thomas voting similarly seems more a thing of happenstance or that they are of like minds than anything else.
But Justice Marshall ALSO did not question the litigants before him.
For some bizarre reaon, though, the same people that see this as a lack of curiosity and intellectual laziness from Justice Thomas seem to recoil at the thought that it must also mean a lack of curiosity and intellectual laziness from Justice Marshall.
Hook’s presentation appears to interpret Harvard Law Review’s Data poorly, if not downright incorrectly. The Law Review analyze regularly publishes statistics on the SC justices and their decisions; the ‘O’ data that he uses in that graphic counts non-unanimous decisions in which a pair of justices agreed in the opinion of the court; it does not include cases in which the justices agreed in dissent, it does not include cases in which they concur in separate opinions, and it does not include unanimous opinions. Nor does it include rulings by memorandum, which are 98% unanimous and which constitute more than half of the court’s rulings.
It’s a fact of history that Thomas writes a lot of concurring opinions; in 59 non-unanimous opinions issued by the Roberts court up to 2009, Thomas agreed with the majority in 45, but only joined in the written opinion in 38 - that’s 7 concurring opinions which are not counted in the ‘O’ data, whereas no other justice has more than 3. Thomas also writes more dissents than Scalia - he is, to my mind, more of a purist, rejecting compromises and precedents that Scalia accepts for reasons of pragmatism. The rejection of these data from Hook’s analysis, IMHO, disguises to some extent the true level of concurrence.
Thurgood Marshall (I assume you’re talking about him and not John) wasn’t really that great a justice. He was a good lawyer, everybody who knew him liked him, and was important for what he represented, but, especially in his later years, he pretty much phoned it in. Most insider accounts I’ve read had him especially dependent on his clerks, who, if reports are to be believed, did a lot of writing for him.
Pfft. I can see the similarity. In both cases, the Justice was a token minority appointment, highly opinionated, & usually had his mind made up beforehand. That, or the whiteys on the SC make it clear that negroes are to be seen & not heard. Which explanation is more likely correct I leave as an exercise for you.
Right or left. Black or white or Hispanic. Male or female. I am increasingly of the opinion that the SCOTUS justices have a pre-conceived notions and crowbar the facts to suit their ideology.
No one, IMO, has been more guilty of this than Scalia of late but, again IMO, they all do it so hard to call him in particular out on it.
At this point they shouldn’t bother even having a trial and oral arguments. Makes for great theater I suppose and gives an illusion of justice but I doubt it changes anything. I do not think any of the justices will be swayed from what they thought was the right answer before ever hearing arguments.
I think before we ask “why”, I think we need to ask “if”. Can you point out examples of people who both question Justice Thomas and recoil at the thought of questioning Justice Marshall for the same reasons? Are there actually large groups of people that do this, or is this another field of strawmen?
But I won’t, because it will take me an hour or more to pull that together and write the post and it took you ten seconds to pose the question.
So I’ll just leave it as: if you believe that Thomas’ reticence is evidence of lack of curiosity and intellectual laziness, do you also believe that of Thurgood Marshall?
I won’t disagree, but I will point out a lot of their opinion is probably based on records from the previous courts & friend of the court briefs. They already know the evidence, the proceedings, the legal arguments used, what other legal scholars think, etc. before they hear a word in court. I really doubt if they ever hear anything in testimony that they didn’t already know.
My personal opinion is that Thomas may just not like speaking in public. A lot people don’t. And as others have noted, it’s not really necessary for the job.
In Marshall’s case, I think it was a sign of aging. The stories about him falling asleep or acting confused began to appear in the eighties when Marshall was in his late seventies. I don’t recall any stories of him being this way when he was younger.