# Scalia and Thomas disagree! Is the apocalypse upon us? **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 28, 2014, 2:26am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150 "2014-04-28T02:26:58Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [April 28, 2014, 2:26am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/1 "2014-04-28T02:26:58Z")
(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](http://www.popehat.com/2014/04/22/supreme-court-conjures-corrorboration-of-anonymous-tip-out-of-thin-air-to-justify-traffic-stop/) (Ken White, April 22, 2014) which begins: > [@Ken White at Popehat](#): > > Today the United States Supreme Court decided Navarette v. California, upholding a California court’s determination that a traffic stop of Navarette’s truck — which, as it turned out, contained drugs — was supported by reasonable suspicion, and therefore constitutional. The opinion is [here.](http://www.popehat.com/wp-content/uploads/2014/04/Navarette-v-California.pdf) It’s a 5-4 decision, with Justice Thomas writing the majority opinion and Justice Scalia writing the dissent. It should have gone the other way. 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? ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [April 28, 2014, 2:36am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/2 "2014-04-28T02:36:47Z")
They diverged in the so called Motor Voter case, [Arizona v. The Inter Tribal Council of Arizona, Inc.](http://www.scotusblog.com/case-files/cases/arizona-v-the-inter-tribal-council-of-arizona-inc/), Scalia wrote the majority opinion. Thomas dissented. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 28, 2014, 4:15am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/3 "2014-04-28T04:15:40Z")
While they are generally in agreement, they have disagreed numerous times in the past. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 28, 2014, 4:32am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/4 "2014-04-28T04:32:29Z")
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. ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [April 28, 2014, 3:57pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/5 "2014-04-28T15:57:18Z")
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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2014, 6:04pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/6 "2014-04-28T18:04:40Z")
> [@Senegoid](#): > > 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? 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. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [April 28, 2014, 8:29pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/7 "2014-04-28T20:29:27Z")
> [@Bricker](#): > > 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. I don’t think you should state that as a fact when its simply your belief ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 29, 2014, 12:50am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/8 "2014-04-29T00:50:28Z")
> [@YogSosoth](#): > > 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 29, 2014, 4:59am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/9 "2014-04-29T04:59:57Z")
Scalia came on the “liberal” side in one of the Guantanamo cases as well. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [April 29, 2014, 6:24am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/10 "2014-04-29T06:24:22Z")
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] ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [April 29, 2014, 7:30am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/11 "2014-04-29T07:30:44Z")
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? ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [April 29, 2014, 7:35am UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/12 "2014-04-29T07:35:13Z")
Shrug, it could be the second. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 29, 2014, 12:58pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/13 "2014-04-29T12:58:19Z")
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. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [April 29, 2014, 1:11pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/14 "2014-04-29T13:11:18Z")
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? ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 29, 2014, 1:42pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/15 "2014-04-29T13:42:52Z")
> [@Nava](#): > > 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 29, 2014, 1:50pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/16 "2014-04-29T13:50:30Z")
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](http://en.wikipedia.org/wiki/Caparo_Industries_plc_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 \ (like [R v Brown](http://en.wikipedia.org/wiki/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. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [April 29, 2014, 1:54pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/17 "2014-04-29T13:54:33Z")
> [@Loach](#): > > 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. 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_. ---
**Author:** ![Lakai](https://avatars.discourse-cdn.com/v4/letter/l/9de0a6/32.png) [@Lakai](https://boards.straightdope.com/u/Lakai)\ **Post date:** [April 29, 2014, 2:11pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/18 "2014-04-29T14:11:26Z")
> [@Nava](#): > > 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? If this case was cited in another court opinion, I think they would use “Lorenzo Prado Navarette v. California” because the [Bluebook](http://en.wikipedia.org/wiki/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. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [April 29, 2014, 2:16pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/19 "2014-04-29T14:16:36Z")
Thanks. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 29, 2014, 2:22pm UTC](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150/20 "2014-04-29T14:22:38Z")
> [@YogSosoth](#): > > I don’t think you should state that as a fact when its simply your belief 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:](http://www.factcheck.org/2009/05/sonia-sotomayor-context-provided/) > [@](#): > > The saw is that if you’re going into academia, you’re going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they’re looking for people with court of appeals experience, because it is — court of appeals is where policy is made. And I know — and I know this is on tape and I should never say that because we don’t ‘make law,’ I know. OK, I know. I’m not promoting it, and I’m not advocating it, I’m — you know. OK. > > Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating — its interpretation, its application. And Judge Lucero is right. I often explain to people, when you’re on the district court, you’re looking to do justice in the individual case. So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you’re always thinking about the ramifications of this ruling on the next step in the development of the law. 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: > [@](#): > > Frank’s thesis, set forth in 1930, should continue to attract examination today. It supports a pride that lawyers can take in what they do and how they do it. The law can change its direction entirely, as when Brown v. Board of Education overruled Plessy v. Ferguson, or as the common law has gradually done by altering the standards of product liability law directly contrary to the originally restricted view that instructed “caveat emptor.” As these case show, change – sometimes radical change – can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often unpredictable system of justice is one that serves a productive, civilized, but always evolving society. Quoting "Returning Majesty to the Law and Politics: A Modern Approach,” 30 Suffolk U. L. Rev. 35,37 (1996-1997). [Next page](https://boards.straightdope.com/t/scalia-and-thomas-disagree-is-the-apocalypse-upon-us/687150.md?page=2)