Scalia and Thomas disagree! Is the apocalypse upon us?

(Putting this in MPSIMS because I suspect that’s really where it belongs, not in GQ or IMHO.)

Have Clarence Thomas and Antonin Scalia ever disagreed in any Supreme Court opinion? Before now?

That ATMB thread by equipoise had a post that led me to Popehat. Browsing there, I found another unrelated but current post: Supreme Court Conjures Corrorboration of Anonymous Tip Out of Thin Air To Justify Traffic Stop (Ken White, April 22, 2014) which begins:

Well, excuse me a moment while I pick jaw up off floor and reassemble face. Has the very nature of the world changed? Is this a sure sign of the coming apocalypse?

Does anyone here know of any other decision in which Scalia and Thomas have disagreed? I’ve sure never heard of it. (To be sure, it’s not like I’m an avid court watcher.) Do I have some excess ignorance here, of which I must be relieved?

They diverged in the so called Motor Voter case, Arizona v. The Inter Tribal Council of Arizona, Inc., Scalia wrote the majority opinion. Thomas dissented.

While they are generally in agreement, they have disagreed numerous times in the past.

I found statistics for the 2011 session.

Here are the pairs of Justices who voted together the most times:

Alito/Roberts - 96%
Kagan/Sotomayor - 94%
Ginsburg/Kagan - 91%
Roberts/Kennedy - 90%
Roberts/Scalia - 90%
Alito/Thomas - 89%
Roberts/Thomas - 89%
Alito/Kennedy - 88%
Breyer/Kagan - 87%
Breyer/Sotomayor - 87%
Alito/Scalia - 86%
Kennedy/Thomas - 86%
Scalia/Thomas - 86%

The court is less divided than casual watchers realize. Of the eighty decisions handed down by the court that session, thirty-eight were unanimous.

They’ve disgreed many times before.

Now, you want to know a REAL black justice who followed orders from a white justice? Thurgood Marshall. He was notoriously lazy, and regularly just told his clerks, “Go found out how Brennan wants me to vote.”
Ah, but that was just great minds thinking alike, right?

Yes, you do. There are a number of famous instances where they came down on opposite sides.

But this is one of the most irritating facts, because no one remembers it. Here’s a case in which Scalia sided with the “liberal” wing, against the “conservatives.” Everyone is amazed.

And the next time it happens, everyone is amazed anew, seemingly retaining no memory of the prior events.

Scalia follows the text of the law. He does this even if it mandates a “liberal” result.

Ginsburg or Sotomayor, in contrast, follow the desire to get a liberal result, and then fashion a rationale to allow them to sustain the result.

This is not an accusation of dishonesty: Sotomayor in particular was quite open about her view that judges, especially justices of the Supreme Court, should be responsible for shaping and growing the law in socially conscious ways. So she’s doing what she said she’d do.

Scalia, in contrast, feels that changes to the law of a substantive nature should come from Congress. He does not feel it’s a judges job to wisely shape and grow the law, but simply to apply it as written.

There is no “right” or “wrong” in those two views: each are defensible as an approach to government.

I don’t think you should state that as a fact when its simply your belief

I think you mean “cite?” The next sentence that you decided to leave out made it clear he believes it is verifiable fact and not opinion. To which of course its reasonable to be asked to be shown when she made such statements.

Scalia came on the “liberal” side in one of the Guantanamo cases as well.

Hijack, since it’s prompted by this thread and I have all you lawyers here already: the decision itself is headlined “Prado Navarette et al v. California”, but Ken White shortened it to “Navarette v. California”. Would this be considered “bad form” in general or would it be normal? (Some background of why I was looking at the decision when I can’t even read half of it and on why I’m asking below)

[spoiler]Navarette looks like it originated when someone mixed up the double letters in Navarrete; Navarrete is a Spanish toponymic lastname, after the village of Navarrete in La Rioja. I was curious about how it was written in the linked decision - did the dancing of the double letters happen before it, or between it and the Dope? (Before, it turns out).

Prado Navarette treats those two words as the brothers’ lastnames; Navarette leaves them fatherless, if they themselves are Hispanic and following the convention of paternal-lastname maternal-lastname. Mr White is effectively calling them unrecognized bastards, something which I suspect neither Mr. Prado Senior nor Mrs. Navarette would be happy about.

Thing is, I don’t see why would anybody need to know all this background in order to respect somebody else’s name or the name of a judicial decision.[/spoiler]

Navarette looks kinda-sorta French to me. Is it possible that it’s a name of French origin – or a Frenchized version of the original Spanish Navarrete?

Shrug, it could be the second.

Getting back to your question, it’s the usual practice only to use the last names of the parties to the case when referring to it. The Court uses the full names in the style of cause, but from then on, only the last names tend to be used.

For example, Marbury v. Madison is the foundational case on the principle of judicial review. Unless you dig into the history of the case, you wouldn’t get that the “Madison” in question is James Madison, at that time Secretary of State and later President.

OK, so basically anybody who has a name structure different from “firstname middlename lastname” can end up chopped-up in a weird spot, but it’s just the usual way to abbreviate, right?

Who said he is from Spain? Different Latin cultures in the New World have different naming conventions. And then many who immigrate here shorten their own names for ease of use and their names officially become the shortened version. Official court papers would have the legal name of the defendant.

The et al in this case appears to be two brothers, Lorenzo Prado Navarette and Juan Prado Navarette.

No. The names of the parties are used. The parties can be inidviduals, companies, the State etc. Typically the party which brings the case is listed first and the respondent/defendant accused second.

For example if Nava sues me then the title will be

Nava v Ak84

If there are more than one respondents (say Northern Piper and Bricker have been added) then the title will be

Nava v Ak84 and others
In the same way where a Company is a party it will sue in its own name.
So a famous English case (Caparo Indsutries V Dickman).

A criminal case usually has the name of the sovereign body as the first one. So in a criminal case the title (in England) is R v <Accused> (like R v Brown) where R is Regina.

The reason the last names are used in everyday usage is that stating the full names is a bit of a mouthful.

  1. I never said nor assumed that they were from Spain and specifically referred to the notion of them using Prado Navarette in the usual fathers-lastname mothers-lastname form as a hypothesis.

  2. My question wasn’t about the name given by the court to the case, which lists both lastnames (following the aforementioned Hispanic convention), but about the shortening performed by White upon the name given by the court.

If this case was cited in another court opinion, I think they would use “Lorenzo Prado Navarette v. California” because the Bluebook (a style guide to legal citation) says to write out foreign names in full, but to omit “et al.” and the names of all other parties appearing after the the name of the first party.

Since this case was abbreviated in a blog post, I would guess the writer used more conventional methods for abbreviating the case name and had just had no idea about foreign naming customs.

Any attorney ignorant about Hispanic naming customs would have done the same thing, unless they were formally citing the case and were aware of the Bluebook rule regarding foreign names.


Sotomayor has essentially said that this is her judicial philosophy – that judges should, in fact, make law, be responsible for substantive creation of law as opposed to simply apply text as written.

Here’s a good example:

Another example: a speech given to Suffolk University Law School by Sotomayor served as the basis for a law review article which she co-authored. In it, she praises “Law and the Modern Mind,” a work by Jerome Frank, a strong advocate for the “law as a tool of social change,” crowd:

Quoting "Returning Majesty to the Law and Politics: A Modern Approach,” 30 Suffolk U. L. Rev. 35,37 (1996-1997).