# Which US Supreme Court Justice is/was most likely to be in a minority of one? **URL:** \ **Category:** Factual Questions\ **Created:** [July 1, 2014, 4:42pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108 "2014-07-01T16:42:01Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 1, 2014, 4:42pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/1 "2014-07-01T16:42:01Z")
Basically the thread title says it all. 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. Google has not been my friend in this case. Thanks! ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 1, 2014, 4:50pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/2 "2014-07-01T16:50:34Z")
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](http://www.oyez.org/justices/thurgood_marshall&sub=opinions) (or at least he did not issue a written dissent in any such case.) ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 1, 2014, 4:59pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/3 "2014-07-01T16:59:13Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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](http://www.oyez.org/justices/thurgood_marshall&sub=opinions) (or at least he did not issue a written dissent in any such case.) Great link! Thank you so much! ETA: Although it isn’t obvious to me that it contains complete records. ---
**Author:** ![TheSeaOtter](https://avatars.discourse-cdn.com/v4/letter/t/ed655f/32.png) [@TheSeaOtter](https://boards.straightdope.com/u/TheSeaOtter)\ **Post date:** [July 1, 2014, 5:27pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/4 "2014-07-01T17:27:40Z")
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) Kennedy 1: (Harris v. Reed) None of the other current justices have any. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 1, 2014, 5:38pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/5 "2014-07-01T17:38:12Z")
> [@TheSeaOtter](#): > > 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) > > Kennedy 1: (Harris v. Reed) > > None of the other current justices have any. I don’t think your tally is correct. In particular, [Alito was the sole dissenter in the case against the Westboro Baptist Church](http://www.washingtonpost.com/wp-dyn/content/article/2011/03/03/AR2011030302920.html). I am not trying to be critical, but that makes me question just how complete things are at the linked site. ---
**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:** [July 1, 2014, 5:39pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/6 "2014-07-01T17:39:10Z")
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. (I think it’s mentioned in _The Brethren_.) ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 1, 2014, 5:46pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/7 "2014-07-01T17:46:57Z")
> [@Northern\_Piper](#): > > (I think it’s mentioned in _The Brethren_.) If I may hijack my own thread, let me ask, please - would you recommend it? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 1, 2014, 6:30pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/8 "2014-07-01T18:30:00Z")
> [@KarlGauss](#): > > I don’t think your tally is correct. In particular, [Alito was the sole dissenter in the case against the Westboro Baptist Church](http://www.washingtonpost.com/wp-dyn/content/article/2011/03/03/AR2011030302920.html). I am not trying to be critical, but that makes me question just how complete things are at the linked site. It doesn’t have Sotomayor’s dissent from U.S v. Jicarilla Apache Nation either. 😕 ---
**Author:** ![actualliberalnotoneofthose](https://avatars.discourse-cdn.com/v4/letter/a/e79b87/32.png) [@actualliberalnotoneofthose](https://boards.straightdope.com/u/actualliberalnotoneofthose)\ **Post date:** [July 1, 2014, 6:52pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/9 "2014-07-01T18:52:03Z")
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). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 1, 2014, 6:57pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/10 "2014-07-01T18:57:26Z")
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). ---
**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:** [July 1, 2014, 7:12pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/11 "2014-07-01T19:12:20Z")
> [@KarlGauss](#): > > If I may hijack my own thread, let me ask, please - would you recommend it? Very much so. Looking back on it, I would say that book was one of the reasons I became a lawyer. ---
**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:** [July 1, 2014, 7:17pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/12 "2014-07-01T19:17:04Z")
> [@Northern\_Piper](#): > > 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. 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. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 1, 2014, 7:24pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/13 "2014-07-01T19:24:24Z")
> [@Northern\_Piper](#): > > Very much so. Looking back on it, I would say that book was one of the reasons I became a lawyer. Thanks, that’s quite a recommendation. 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). \*it is the [Canada Day](http://canadaday.gc.ca/eng/1399898650690) holiday, eh! ---
**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:** [July 1, 2014, 9:11pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/14 "2014-07-01T21:11:13Z")
I don’t know if it’s still in print, but a library or good second hand bookstore should have it. ---
**Author:** ![Deeg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deeg/32/2955_2.png) [@Deeg](https://boards.straightdope.com/u/Deeg)\ **Post date:** [July 1, 2014, 11:16pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/15 "2014-07-01T23:16:24Z")
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. ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [July 1, 2014, 11:26pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/16 "2014-07-01T23:26:02Z")
The one furthest to the left – if there ever is one. But it would have to be one with guts, too – if there ever is one. I recall once, seeing “Justice Rehnquist” on a list of Oxymorons. ---
**Author:** ![smithsb](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smithsb/32/12107_2.png) [@smithsb](https://boards.straightdope.com/u/smithsb)\ **Post date:** [July 2, 2014, 1:08am UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/17 "2014-07-02T01:08:57Z")
Don’t restrict your search to 8-1 decisions. With vacancies and recusals, there are some 7-1 and lesser decisions out there. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [July 2, 2014, 1:59pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/18 "2014-07-02T13:59:51Z")
John Marshall Harlan, whose career spanned the 19th and 20th centuries, was known as the Great Dissenter, and the Oyez project lists [three cases](http://www.oyez.org/justices/john_m_harlan&sub=opinions) 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. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 2, 2014, 2:33pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/19 "2014-07-02T14:33:17Z")
> [@Freddy\_the\_Pig](#): > > John Marshall Harlan, whose career spanned the 19th and 20th centuries, was known as the Great Dissenter, and the Oyez project lists [three cases](http://www.oyez.org/justices/john_m_harlan&sub=opinions) 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. Thanks for this. 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. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [July 2, 2014, 3:18pm UTC](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108/20 "2014-07-02T15:18:50Z")
> [@jtur88](#): > > The one furthest to the left – if there ever is one. But it would have to be one with guts, too – if there ever is one. > > I recall once, seeing “Justice Rehnquist” on a list of Oxymorons. **Moderator Note** **jtur88** , political jabs are not permitted in General Questions. No warning issued, but keep your comments factual. Colibri General Questions Moderator [Next page](https://boards.straightdope.com/t/which-us-supreme-court-justice-is-was-most-likely-to-be-in-a-minority-of-one/692108.md?page=2)