That’s not “leaving it as is”-that’s moving the goalposts and stealing the ball. You made the claim, and it doesn’t matter one whit if it only took me ten seconds to spot the problem with it. Either provide a cite, or relabel your claim as nothing more than a personal opinion.
It may be wise, as you suggest, to restrict attention to 5-4 decisions, since that is when the vote “counts.” I did my own study, and found that Scalia and Thomas were on the same side in 102 out of 113 five-four decisions, more than any other pair.
From Wikipedia, I reconstructed a database of 580 Supreme Court decisions for the years 2001-2009. Of these, 113 decisions were made by a 5-4 vote. I confined my analysis to those 113 cases.
I found that the 4 “liberals” (Stevens, Ginsburg, Breyer and either Souter or Sotomayor) voted the same way on 83 of the cases, split 3-1 on 18 of the cases, and split 2-2 on 12 of the cases.
Of the 83 five-four decisions where “liberals” were united, they lost 52 and won the remainder with the help of Kennedy (18), O’Connor (10), Scalia (2), Thomas (1).
Of the 18 five-four decisions where “liberals” were split 3-1, they lost 11 despite help from O’Connor (5), Kennedy (2), Scalia (2), Thomas (1), Rehnquist (1), and won 7.
By the way, when groups of 2 judges are considered instead of groups of 4, no pair of “liberals” outperformed Scalia and Thomas for correlation: this pair were on the same side in 102 out of the 113 five-four decisions.
Here are the detailed votes in the 113 five-four decisions:
The 12 vote columns correspond to
Case Correctional Services Corp. v. Malesko" : YxNYYYNYNNxx 5 4 9 Case Dusenbery v. United States (page does no : YxNYYYNYNNxx 5 4 9 Case Great-West Life & Annuity Ins. Co. v : YxNYYYNYNNxx 5 4 9 Case Kelly v. South Carolina (page does not e : NxYYNNYNYYxx 5 4 9 Case Ragsdale v. Wolverine World Wide, Inc. ( : YxYNYYNYNNxx 5 4 9 Case Hoffman Plastic Compounds, Inc. v. NLRB" : YxNYYYNYNNxx 5 4 9 Case Mickens v. Taylor (page does not exist)" : YxNYYYNYNNxx 5 4 9 Case Thompson v. Western States Medical Cente : NxNYYYYYNNxx 5 4 9 Case US Airways, Inc. v. Barnett (page does n : YxYYNYNNNYxx 5 4 9 Case Los Angeles v. Alameda Books, Inc. (page : YxNYYYNYNNxx 5 4 9 Case Federal Maritime Comm'n v. South Carolin : YxNYYYNYNNxx 5 4 9 Case McKune v. Lile (page does not exist)">Mc : YxNYYYNYNNxx 5 4 9 Case Carey v. Saffold (page does not exist)"> : NxYYNNYNYYxx 5 4 9 Case Rush Prudential HMO, Inc. v. Moran">Rush : NxYYNNYNYYxx 5 4 9 Case Harris v. United States (page does not e : YxNYYYNNNYxx 5 4 9 Case Zelman v. Simmons-Harris">Zelman v. Simm : YxNYYYNYNNxx 5 4 9 Case Republican Party of Minnesota v. White"> : YxNYYYNYNNxx 5 4 9 Case Board of Ed. of Independent School Dist. : YxNNYYNYNYxx 5 4 9 Case Sattazahn v. Pennsylvania (page does not : YxNYYYNYNNxx 5 4 9 Case United States v. White Mountain Apache T : NxYYNNYNYYxx 5 4 9 Case Ewing v. California">Ewing v. California : YxNYYYNYNNxx 5 4 9 Case Lockyer v. Andrade">Lockyer v. Andrade</ : YxNYYYNYNNxx 5 4 9 Case Brown v. Legal Foundation of Washington : NxYYNNYNYYxx 5 4 9 Case Virginia v. Black">Virginia v. Black</a> : YxYYYNNNNYxx 5 4 9 Case Roell v. Withrow (page does not exist)"> : YxNYNNYNYYxx 5 4 9 Case Nguyen v. United States (page does not e : NxYYNYYYNNxx 5 4 9 Case American Insurance Association v. Garame : YxNYNYYNNYxx 5 4 9 Case Green Tree Financial Corp. v. Bazzle (pa : NxNNYNYNYYxx 4 5 9 Case Georgia v. Ashcroft">Georgia v. Ashcroft : YxNYYYNYNNxx 5 4 9 Case Stogner v. California">Stogner v. Califo : NxYYNNYNYYxx 5 4 9 Case Jama v. Immigration & Customs Enforc : YxNYYYNYNNxx 5 4 9 Case Smith v. Massachusetts (page does not ex : NxYYYNYYNNxx 5 4 9 Case Roper v. Simmons">Roper v. Simmons</a></ : NxYNNYYNYYxx 5 4 9 Case Jackson v. Birmingham Board of Education : NxYYNNYNYYxx 5 4 9 Case Johnson v. United States (page does not : YxNYNNYYNYxx 5 4 9 Case Pasquantino v. United States (page does : YxYYNYNYNNxx 5 4 9 Case Pace v. DiGuglielmo (page does not exist : YxNYYYNYNNxx 5 4 9 Case Granholm v. Heald">Granholm v. Heald</a> : NxNNYYYNYYxx 5 4 9 Case Medellin v. Dretke" class="mw-redirect"> : YxNNYYNYYNxx 5 4 9 Case Dodd v. United States (page does not exi : YxNYYYNYNNxx 5 4 9 Case Rompilla v. Beard (page does not exist)" : NxYYNNYNYYxx 5 4 9 Case Kelo v. City of New London">Kelo v. City : NxYNNYYNYYxx 5 4 9 Case Exxon Mobil Corp. v. Allapattah Servs. ( : YxNNYYYYNNxx 5 4 9 Case Van Orden v. Perry">Van Orden v. Perry</ : YxNNYYNYNYxx 5 4 9 Case Bell v. Thompson (page does not exist)"> : YxNYYYNYNNxx 5 4 9 Case McCreary County v. ACLU" class="mw-redir : NxYYNNYNYYxx 5 4 9 ----- Case Brown v. Sanders (page does not exist)"> : xYNYYYNYNNxx 5 4 9 Case Central Virginia Community College v. Ka : xNYYNNYNYYxx 5 4 9 ----- Case Day v. McDonough">Day v. McDonough</a></ : xYNxNYYNYNYx 5 4 9 Case Garcetti v. Ceballos">Garcetti v. Ceball : xYNxYYNYNNYx 5 4 9 Case Hudson v. Michigan">Hudson v. Michigan</ : xYNxYYNYNNYx 5 4 9 Case Empire HealthChoice Assurance, Inc. v. M : xYYxYNNYYNNx 5 4 9 Case Rapanos v. United States">Rapanos v. Uni : xYNxYYNYNNYx 5 4 9 Case United States v. Gonzalez-Lopez">United : xNYxYNYNYYNx 5 4 9 Case Kansas v. Marsh">Kansas v. Marsh</a></i> : xYNxYYNYNNYx 5 4 9 Case Ayers v. Belmontes (page does not exist) : xYNxYYNYNNYx 5 4 9 Case Lawrence v. Florida (page does not exist : xYNxYYNYNNYx 5 4 9 Case Philip Morris USA v. Williams">Philip Mo : xYNxNYYNNYYx 5 4 9 Case Marrama v. Citizens Bank of Massachusett : xNYxNYYNYYNx 5 4 9 Case Massachusetts v. EPA" class="mw-redirect : xNYxNYYNYYNx 5 4 9 Case Zuni Public School District No 89 v. Dep : xNYxNYNNYYYx 5 4 9 Case Gonzales v. Carhart">Gonzales v. Carhart : xYNxYYNYNNYx 5 4 9 Case James v. United States (2007)">James v. : xYNxNYYNNYYx 5 4 9 Case Abdul-Kabir v. Quarterman (page does not : xNYxNYYNYYNx 5 4 9 Case Brewer v. Quarterman (page does not exis : xNYxNYYNYYNx 5 4 9 Case Smith v. Texas (2007)">Smith v. Texas</a : xNYxNYYNYYNx 5 4 9 Case Schriro v. Landrigan (page does not exis : xYNxYYNYNNYx 5 4 9 Case Ledbetter v. Goodyear Tire & Rubber : xYNxYYNYNNYx 5 4 9 Case Uttecht v. Brown">Uttecht v. Brown</a></ : xYNxYYNYNNYx 5 4 9 Case Bowles v. Russell">Bowles v. Russell</a> : xYNxYYNYNNYx 5 4 9 Case Morse v. Frederick">Morse v. Frederick</ : xYNxYYNYNNYx 5 4 9 Case Federal Election Commission v. Wisconsin : xYNxYYNYNNYx 5 4 9 Case Hein v. Freedom From Religion Foundation : xYNxYYNYNNYx 5 4 9 Case National Assn. of Home Builders v. Defen : xYNxYYNYNNYx 5 4 9 Case Parents Involved in Community Schools v. : xYNxYYNYNNYx 5 4 9 Case Leegin Creative Leather Products, Inc. v : xYNxYYNYNNYx 5 4 9 Case Panetti v. Quarterman">Panetti v. Quarte : xNYxNYYNYYNx 5 4 9 Case Ali v. Federal Bureau of Prisons">Ali v. : xYNxYNNYYNYx 5 4 9 Case United States v. Santos (page does not e : xNYxYNYYYNNx 5 4 9 Case Irizarry v. United States (page does not : xYYxYNNYNNYx 5 4 9 Case Boumediene v. Bush">Boumediene v. Bush</ : xNYxNYYNYYNx 5 4 9 Case Dada v. Mukasey">Dada v. Mukasey</a></i> : xNYxNYYNYYNx 5 4 9 Case Sprint Communications Co. v. APCC Servic : xNYxNYYNYYNx 5 4 9 Case Kennedy v. Louisiana">Kennedy v. Louisia : xNYxNYYNYYNx 5 4 9 Case District of Columbia v. Heller">District : xYNxYYNYNNYx 5 4 9 Case Medellin v. Texas : xYNxYYNYNNYx 5 4 9 Case Winter v. Natural Resources Defense Coun : xYNxYYNYNNYx 5 4 9 Case Altria Group, Inc. v. Good" class="mw-re : xNYxNYYNYYNx 5 4 9 Case Herring v. United States">Herring v. Uni : xYNxYYNYNNYx 5 4 9 Case Oregon v. Ice">Oregon v. Ice</a></i>, 55 : xNYxNYNNYYYx 5 4 9 Case Summers v. Earth Island Institute (page : xYNxYYNYNNYx 5 4 9 Case Bartlett v. Strickland">Bartlett v. Stri : xYNxYYNYNNYx 5 4 9 Case Vaden v. Discover Bank (page does not ex : xNNxYYYYYNNx 5 4 9 Case Entergy Corp. v. Riverkeeper, Inc. (page : xYNxYYNYNNYx 5 4 9 Case 14 Penn Plaza LLC v. Pyett (page does no : xYNxYYNYNNYx 5 4 9 Case Corley v. United States (page does not e : xNYxNYYNYYNx 5 4 9 Case Arizona v. Gant">Arizona v. Gant</a></i> : xNYxYNYYYNNx 5 4 9 Case FCC v. Fox Television Stations, Inc." cl : xYNxYYNYNNYx 5 4 9 Case Ashcroft v. Iqbal">Ashcroft v. Iqbal</a> : xYNxYYNYNNYx 5 4 9 Case Haywood v. Drown">Haywood v. Drown</a></ : xNYxNYYNYYNx 5 4 9 Case Montejo v. Louisiana">Montejo v. Louisia : xYNxYYNYNNYx 5 4 9 Case Caperton v. A. T. Massey Coal Co." class : xNYxNYYNYYNx 5 4 9 Case United States v. Denedo (page does not e : xNYxNYYNYYNx 5 4 9 Case District Attorney's Office for Third Jud : xYNxYYNYNNYx 5 4 9 Case Gross v. FBL Financial Services, Inc. (p : xYNxYYNYNNYx 5 4 9 Case Melendez-Diaz v. Massachusetts">Melendez : xNYxYNYYYNNx 5 4 9 Case Atlantic Sounding Co. v. Townsend">Atlan : xNYxNNYYYYNx 5 4 9 Case Horne v. Flores">Horne v. Flores</a></i> : xYNxYYNYNNYx 5 4 9 Case Cuomo v. Clearing House Assn., L. L. C." : xNYxYNYNYYNx 5 4 9 Case Ricci v. DeStefano">Ricci v. DeStefano</ : xYNxYYNYNNYx 5 4 9 ---------- Case Hollingsworth v. Perry : xYNxYYxYNNYN 5 4 9 Case Wellons v. Hall" class="mw-redirect">Wel : xNYxNYxNYYNY 5 4 9 Case South Carolina v. North Carolina (page d : xNYxYYxNNYYN 5 4 9
In the Table, Y and N indicate whether the Justice concurred with the majority, not whether he voted to uphold or overturn the lower court ruling. (And sorry for any errors that may have slipped in.)
Thanks for doing that.
Bricker, After being called out in the pit thread, I realized I didn’t actually know of any factual basis for the meme (Thomas is Scalia’s lap dog) I had come to believe.
As for Thurgood Marshal, He is a historical figure at ths point. He was off the bench before I had much political awareness at all, and like many laymen the judicial branch was quite dim on my radar for a long time.
By that time Marshal was seen to be somewhat senile, but then we also had a president around then that was widely seen the same way. Thomas is still not old enough to have dotage available as an excuse.
Marshal came to the court with a reputation as the firebrand that had prevailed in Brown. Thomas came to his confirmation hearing as a Federal judge of less than two years experience of whom few outside the legal profession had heard. Beyond Anita Hill’s (in)famous testimony, the lay public’s first impression was influenced by the then new (post Robert Bork) tactic of vague evasiveness by judicial nominees. His nomination was seen as an appeasement to conservatives disappointed by Bush I’s nomination of David Souter to replace Justice Brennan. Accurate or not, Thomas has certainly been a reliable vote for conservatives.
Was Marshal also known for voting in lockstep with another justice? Did pundants find his rulings to be reliably predictable, or were they suprised by them? Are any of Thomas’ opinions seen as groundbreaking?
I am far from an expert. But from what I recall, most from reading The Brethren the idea that Marshal was a lightweight judge long preceded his dotage. He had a passion for civil rights cases, but otherwise followed William Brennan’s lead. Wikipedia refers to it this way:
Can you explain this a little further? Are you picturing a situation where one justice is tempted to vot eone way, but conforms his vote to the other side in order to win?
That is: your inference that the vote “really counts” is not clear. Under what circumstances would a justice switch his vote, making the 5-4 votes the only one significant enough to be counted?
If the charge is blind following, wouldn’t those 7-2 decisions, where the position is so outying that only the two judges accusd of voting in lockstep agreed with each other be even more significant? In a 5-4 decision, it’s true the two “suspects” voted together, but so did three other members, suggesting more independent reasons for so voting. The 7-2 decisions could not attract anyone except the leader and his follower.
Why not focus on those, if they exist?
What does this really tell you?
I suspect SCOTUS justices have healthy egos and have no reason whatsoever to rollover for any other justice (do they even horse trade…e.g. one will throw their vote behind something that is important to another justice if that justice throws their vote behind their pet case?). My link I provided earlier suggests they have rather little to do with each other. So how would someone be someone’s lapdog (Scalia/Thomas, Brennan/Marshall)?
Seems more likely in a 7-2 decision you simply have two like-minded people on the subject.
How do clerks figure in to all of this? When Marshall started losing his faculties do the clerks play a more important role?
I honestly do not know. The inner sanctum of the Supreme Court and how they work is a mystery to me so just asking.
I’ve absolutely no relevant expertise, so take my response with a large dosage of “salt”, and accept an apology if I impugn the honour of a worthy Justice, but …
Skeptics might imagine that a Justice casting the 7th concurring vote, or only the 2nd dissenting vote, might be voting on a different basis (e.g. principle) than a Justice casting the 5th vote in a 5-4 decision.
But I’ve no strong feeling about this one way or the other; I crunched the 5-4 decisions because those seemed the ones that would give the clearest picture of an alleged liberal-conservative split. (Also, developing the data from the Wiki files wasn’t fully automated, so I may have stripped down to 5-4’s only to save time.)
BTW, one thing that puzzles me. Approximately the same 5-4 split, with the Justices on each side tending to be constant, emerges on seemingly unrelated matters. Do others see this? Is it surprising?
No, he is in the right spot.
On 5-4 votes every justice is a potential swing vote as to what becomes law. Joining other opinions is just a matter of egos. If Thomas is colluding with Scalia, (or just “has his back”) then they might choose to split their votes on decisions where it will not effect the outcome to help disguise the fact.
It happens in the Senate and House all the time. If the Whips have either plenty of votes, or no where near enough, some members will be given a “pass” to buck their party if they feel it is important for some reason to do so. In cases where the vote will be close, much more pressure is applied to conform.
My former congresswoman, Heather Wilson, used to frequently mention her vote for the stem cell bill as an example (one of VERY few) of not rubber stamping Bush-II policy. This was a vote cast when it was clear that the measure would enjoy wide bipartisan support and the president had already publicly sworn an oath to veto it: She could claim support for a popular measure without the risk of creating a law our president opposed.
You feel this board is a hotbed of conservatism?
No no no, you’re supposed to be the same one! Don’t stoop to the level of elucidator, or me!
Yes, I almost mentioned this in my response but didn’t want to impugn the much-maligned Mr. Thomas outside BBQ Pit.
102 hits out of 113 ! Sure supports the “lapdog” charge. As Kevbo implies, if the correlation is much less on lop-sided votes, that would actually tend to support the lapdog charge!
http://www.care2.com/causes/politics/blog/scalia-thomas-put-democracy-at-risk/ Scalia and Thomas reportedly attend Koch , right wing rallies together. The judicial is a lot about appearance of neutrality. Apparently it does not apply to these two. Thomas’s wife is a tea bagger and has her own tea bagger organization . She has not revealed who sponsors her group. Judges should know what appearances mean. These two don’t care.
It is not just the frequency of their decisions being in agreement. It is also the kind of decisions that they agree on too. Whether they agree on unimportant cases does not matter much, even though the numbers are obvious. But the pro business, anti worker, decisions are dangerous to the nation.
It really is not progressive. It may lean a little left but the idea that this is a heavy lefty board is way off.
sane. I meant sane. Wow, I was having a lot of trouble typing last weekend last weekend.
I’d argue that it is pretty much inevitable that the voting pattern of the “liberal” justices will be more over the place. There is a common tie between Scalia, Thomas and Alito, and to a lesser extent Roberts. And that common tie is textualism. It’s a legal theory that often provides clear results - Scalia, Thomas and Alito therefore get more moments where, to them, there is no other possible outcome.
The legal theories of the so-called liberals are more diverse and more nuanced. Therefore they tend to scatter decisions more.
What interests me is why it is always supposedly Thomas following Scalia rather than the other way round. Especially because many people think Thomas is smarter.
I believe you’re misconstruing the statement about debate. Virtually nobody on this board debates with other members, either; they just write posts expressing their point of view, or disagreeing with and debunking someone else’s.
In a very real sense, Supreme Court opinions are very much like that. They’re statements of the facts and relevant law leading to a conclusion, written in a manner calculated to cause the reader to see the logic of the conclusion drawn. The justices are nine people who know each other’s jurisprudential philosophy very well; they don’t sit and argue over issues verbally, by and large. Instead they devote their time, and more importantly their clerks’ time, to crafting documents calculated to retain any support they already have while winning as many other justices to join with them as possible, and at minimum that critical fifth justice that makes their opinion that of the Court, and law of the land, rather than a dissent fated to gather dust for 40 years save for random quotes by partisan fanwankers of constitutional law until a new generation sees its wisdom.
I think it’s because Thomas literally followed Scalia on to the court. Scalia joined in 1986; Thomas in 1991. So when they appeared to have similar views, it’s natural for people to say Thomas is a second Scalia and not the other way around.
And while they may be similar in their rulings, I think everyone would agree they have very different personal styles. Thomas does not appear to seek attention for himself while Scalia seems to enjoy the spotlight. So the more visible person appears to be the leader, regardless of who may actually be influencing who.
And Scalia is white and Thomas is black.