I am especially curious to know if any 20th (or 21st) century SCOTUS judge was/is considerably more likely to be the sole dissenting justice than most of his/hers predecessors and contemporary peers.
And, just to be clear, although a long-serving justice is more likely to be in a minority of one in total over his/her career simply by virtue of having been involved in more cases, I am hoping to find a percentage-based answer.
Oyez lists the opinions authored by each justice and the associated votes. So you can get a pretty close tally by looking at the pages for each justice.
Anecdotal: of the cases we read during law school Thurgood Marshall was frequently in the minority. This was particularly true in criminal procedure cases. However, it looks like he was never the sole dissenter (or at least he did not issue a written dissent in any such case.)
According to the linked site, the count for current members of the Court filing dissents on 8-1 decisions:
Thomas 5: (Dawson v. Delaware, Doctor’s Associates Inc. v. Casarotto, Mastrobuono v. Shearson Lehman Hutton, Inc., Nebraska v. Wyoming & Lopez v. Monterey County)
Scalia 2: (Stewart Organization, Inc. v. Ricoh Corp. & Mistretta v. United States)
I believe Rehnquist in his early days on the bench often found himself alone, to the point that one year his clerks gave him a Lone Ranger figurine for his mantle.
Just an observation that is biased due to my interest in specific types of cases, but Thomas seems to dissent as the only one who takes the rights of the individual over unlimited deference to state power (in the cases I pay attention to).
Your observation isn’t biased. It’s merely incorrect. Thomas doesn’t believe in substantive due process, and thus does not see the constitution as much of a limitation on state governments (though he argues that some of the same rights should attach through the Privileges & Immunities Clause).
Chief Justice Burger was also pretty conservative. But he had a tactic that often put Rehnquist by himself. As Chief Justice, Burger assigned the author of decisions he had voted for. If he was not in the majority, the senior justice in the majority (who was usually Douglas or Brennan) assigned the author.
So if Burger saw that he was in the minority and wasn’t going to win the decision, he often switched his vote and joined the majority. As Chief Justice, he then assigned the writing of the decision to himself. He figured he would write a narrower decision than Douglas or Brennan would. These Justices complained that Burger was essentially hijacking decisions he didn’t actually support.
It’s a shame everything’s closed today* - I would have gone right over to get a copy (and in anticipation of those might say, ‘Aren’t you forgetting Kindle?’. Nope. Can’t stand reading books on it. One of my charming idiosyncrasies).
Once again the SDMB shines. I originally skipped this thread because I didn’t think the topic would interest me. It turns out to have been very interesting.
John Marshall Harlan, whose career spanned the 19th and 20th centuries, was known as the Great Dissenter, and the Oyez project lists three cases where he filed sole dissents. Two of those cases–Plessy v. Ferguson and the Civil Rights Cases–are among the most famous in Supreme Court history, and Harlan was on the right side of history, so that no doubt contributes to his reputation.
I have no idea where Harlan would rank on a percentage basis. The Supreme Court heard fewer cases in his day, and as noted the Oyez listing is incomplete.
The motivation for my OP was not just to identify people like Harlan, but also to try to understand (by further reading) where and how they got their courage. And, as you anticipated, I wanted to see if historical developments vindicated them.
