# Have SC Justices Scalia Thomas ever been on different sides of an opinion? **URL:** \ **Category:** Factual Questions\ **Created:** [September 18, 2005, 6:19pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234 "2005-09-18T18:19:40Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [September 18, 2005, 6:19pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/1 "2005-09-18T18:19:40Z")
Just curious. Do they always vote in lockstep? ---
**Author:** ![Go\_Blue](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Go\_Blue](https://boards.straightdope.com/u/Go_Blue)\ **Post date:** [September 18, 2005, 6:26pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/2 "2005-09-18T18:26:39Z")
They vote differently a lot more than people think. They were on different sides on the med. marijuana case for one example. Another example is Scalia supports the negative commerce clause as matter of stare decis, while Thomas wants it overturned. ---
**Author:** ![Go\_Blue](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Go\_Blue](https://boards.straightdope.com/u/Go_Blue)\ **Post date:** [September 18, 2005, 6:36pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/3 "2005-09-18T18:36:57Z")
Acording to Will Baude, in a recent term they agreed 73% of the time. > [@](#): > > To be sure, Thomas and Scalia–the Court’s two committed originalists–frequently agree. But this term six other pairs of justices agreed more frequently than they did. Justices Souter and Ginsburg were in complete agreement in 85 percent of the Court’s decisions. Chief Justice Rehnquist agreed with Justice O’Connor in 79 percent and Justice Kennedy in 77 percent. Justices Stevens and Souter agreed 77 percent of the time; so did Justices Ginsburg and Breyer. Thomas and Scalia agreed in only 73 percent of the cases. Thomas regularly breaks with Scalia, disagreeing on points of doctrine, finding a more measured and judicial tone, and calling for the elimination of bad law. Unless he is simply a very bad yes-man, Clarence Thomas is a more independent voice than most people give him credit for. > **[Archives](https://www.outsidethebeltway.com/archives/)** ---
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [September 18, 2005, 6:59pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/4 "2005-09-18T18:59:52Z")
> [@Go Blue](#): > > Acording to Will Baude, in a recent term they agreed 73% of the time. > > [http://www.outsidethebeltway.com/archives/6664](http://www.outsidethebeltway.com/archives/6664) Hmm… interesting. I’ll bet someone could win several bar bets with those unexpected percentages. ---
**Author:** ![Go\_Blue](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Go\_Blue](https://boards.straightdope.com/u/Go_Blue)\ **Post date:** [September 18, 2005, 7:02pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/5 "2005-09-18T19:02:18Z")
> [@](#): > > Hmm… interesting. I’ll bet someone could win several bar bets with those unexpected percentages. That probably represents something different from what you were looking for. I think that number takes into account decisions where they reached the same result but through different reasoning. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [September 18, 2005, 8:05pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/6 "2005-09-18T20:05:51Z")
Check out Thomas’ dissent in \*Kelo v New London \* if your interested in a case where they disagree ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 18, 2005, 8:51pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/7 "2005-09-18T20:51:40Z")
> [@](#): > > Thomas regularly breaks with Scalia, disagreeing on points of doctrine, finding a more measured and judicial tone, and calling for the elimination of bad law. Unless he is simply a very bad yes-man, Clarence Thomas is a more independent voice than most people give him credit for. I agree with Baude that Thomas is not nearly the Scalia yesman he’s made out to be, but I would disagree that he’s the “more measured and judicial tone” and that he’s some sort of voice of reason who frequently calls for the elimination of “bad law.” To be frank, Scalia is just someone I often disagree with, but Thomas scares the crap out of me. _See generally, Elk Grove Unified School Dist. v. Newdow_, 542 U. S. 1, 50 (2004) (Thomas, J; opinion concurring in judgment). ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 18, 2005, 9:05pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/8 "2005-09-18T21:05:27Z")
> [@pravnik](#): > > I agree with Baude that Thomas is not nearly the Scalia yesman he’s made out to be, but I would disagree that he’s the “more measured and judicial tone” and that he’s some sort of voice of reason who frequently calls for the elimination of “bad law.” To be frank, Scalia is just someone I often disagree with, but Thomas scares the crap out of me. _See generally, Elk Grove Unified School Dist. v. Newdow_, 542 U. S. 1, 50 (2004) (Thomas, J; opinion concurring in judgment). Crap, I thought this was IMHO. That wasn’t probably wasn’t an appropriate GQ response; my apologies. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 18, 2005, 9:07pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/9 "2005-09-18T21:07:38Z")
> [@pravnik](#): > > Crap, I thought this was IMHO. That wasn’t probably wasn’t an appropriate GQ response; my apologies. And to top it off, isn’t that wasn’t isn’t good grammar proper. Oy, what a day I’m horving! ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [September 19, 2005, 3:03pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/10 "2005-09-19T15:03:15Z")
Those \*are \* some interesting stats. Scalia and Thomas parted ways on the Yasser Hamdi case, IIRC, and the flag-burning case a few years ago, too. ---
**Author:** ![Go\_Blue](https://avatars.discourse-cdn.com/v4/letter/g/ce73a5/32.png) [@Go\_Blue](https://boards.straightdope.com/u/Go_Blue)\ **Post date:** [September 19, 2005, 3:22pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/11 "2005-09-19T15:22:37Z")
> [@](#): > > IIRC, and the flag-burning case a few years ago, too. Thomas wasn’t on the Court yet when Johnson (89) and Eichman (90) were decided. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [September 19, 2005, 5:43pm UTC](https://boards.straightdope.com/t/have-sc-justices-scalia-thomas-ever-been-on-different-sides-of-an-opinion/322234/12 "2005-09-19T17:43:28Z")
> [@William V.](#): > > Those \*are \* some interesting stats. Scalia and Thomas parted ways on the Yasser Hamdi case, IIRC, and the flag-burning case a few years ago, too. Not flag-burning, but they did part company last year in a case involving cross-burning. Specifically, they disagreed on the Constitutionality of a Virgia law that held cross-burning to be prima facie evidence of intent to intimidate. Scalia (and the five justice majority that included Stevens, Breyer, O’Connor and Rhenquist) found that an incidence of cross-burning COULD be a protected form of free expression and that the state could not assume that cross-burning IN AND OF ITSELF is an act of intimidation. Thomas wrote a pretty strongly-worded dissent that cross-burning was conduct, not expression, and one that had been used to terrorize African-Americans for generations. The case was widely commented on at the time due to the unusual right-left majority coalition and the Thomas dissent as the court’s only African-American justice.