In the build-up to Gorsuch’s confirmation, there’s been a lot of talk about the “judicial mainstream”. How would you define that space? Looking at the eight justices currently serving, how many do you think are within the “judicial mainstream” and which ones do you think are outside of it (and why?)? Is Gorsuch? What about Scalia or other recent justices?
Mainstream just means popular, IMO. It is the antithesis of fringe. It is an adjective that applies to views, not people. I don’t know how many of your views have to be fringe before you can be called outside the mainstream.
Thomas strikes me as the only sitting justice with many fringe views. He frequently dissents or separately concurs on grounds that no other justice joins. Indeed, overall, he dissents and separarely concurs about four times as often as the next most common dissenter or concurrer. These separate opinions often take the form of rejecting the whole body of law that is being applied, reasoning for example that teachers should have control over students as if they were their own children, and the like.
I doubt Gorsuch would be Thomas. More likely he would be like Alito. On the very conservative end of mainstream, but not out in the fringe, on most issues.
Thanks for that. Just curious, where did you find the information about “… he dissents and separarely concurs about four times as often as the next most common dissenter or concurrer.”
Half-remembered numbers from perusing SCOTUSBlog statpack.
Looks like the most recent report has it at 18 dissents compared to 8, and 14 concurrences compared to 6. But I’ll bet the number of his solo dissents and solo concurrences is closer to 4:1.
You can poke through the agreement tables or the total opinion authorship stats as well, which I think all point to his being on his own more often than anyone else by a significant margin. Thomas and Roberts disagreed in judgment 25% of the time. That’s more often than Roberts disagreed with Ginsburg!
Do his outlier decisions tend to be weakly reasoned or poorly sourced, or are they logically and otherwise sound but simply based on a legal philosophy that happens to be very much out of favor (at this time)?
[Not that the answer to the above would impact whether or not he’s fringe, but I’m curious nonetheless.]
It’s a mixed bag, and I don’t know what predominates. Certainly a substantial part of it is opinions in which he rejects some binding precedent. He has comparatively little deference to stare decisis. Other justices might agree with his reasoning but would give more deference to precedent and so don’t join him. I’m not sure if you’d call the level of deference to precedent badly reasoned or merely unpopular. Precedent is certainly a bedrock of the rule of law, but I don’t think you can really say being more or less deferential to precedent is a result of poor reasoning.
Another frequent example is when he is espousing some version of originalism that went too far for even Scalia or Alito. I think it’s a matter of debate whether that extreme originalism is internally coherent and sound. But apart from that, IMHO, often when he plays armchair historian he does so exactly as well as you would expect an armchair historian to do.
His solo concurrence in Morse v. Frederick is an example of both types.