There is and has been a clear ideological division between the more conservative and liberal Justices on the Court, especially in cases with high profile civil rights issues such as marriage equality. A not so often examined aspect of this fissure has to do with the cohesion of the individual voting blocs. For instance, Justice Roberts has been criticized time and again from the right for his tie-breaking vote to the Left in the first Supreme Court case examining the Affordable Health Care Act.
One way to analyze this cohesion is by looking at the opposite; that is, self-identified marginalization of the Justices. This post looks at dissents over the last two Terms that attack or harshly criticize the Court’s majority in that case.
The parameters for this interrogation are fairly simple as it is primarily a linguistic exercise. Initially I began with a search over the past three Terms for dissents that directly reference the “majority” of the Court. The result is 56 cases.
Then cases were excluded where the majority was mentioned but not criticized. An example of such a benign instance comes Justice Breyer’s dissent from Horne v. Dept. of Agriculture:
“Ultimately, the majority rejects the Government’s request for a remand because it believes that the Government “does not suggest that the marketing order affords the Hornes compensation” in the amount of the fine that the Government assessed. Ante, at ___, 192 L. Ed. 2d, at 404. In my view, however, the relevant precedent indicates that the Takings Clause requires compensation in an amount equal to the value of the reserve raisins adjusted to account for the benefits received.”
With this set of dissents pared out of the larger sample the resulting set of aggressively worded dissents totals 39 from 35 cases.
One note of caution in interpreting the results: since I focused on dissents that targeted the majority, I did not include dissents that focused on other phrasing for portions of the Court. Justice Scalia, for example, often wrote about the “Court” in his dissents as he did in this now infamous line from King v. Burwell: “The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state.“ Using “Court” rather than the “majority,” however, is a different characterization that does not split the Court into different camps in the same manner. This is essentially the distinction between “me against the group” and “us versus them.” Justice Scalia also referenced the Court’s “majority” in several dissents, showing that he accommodated both conceptions of the opposing members of the Court.
With this in mind, we can look to the vote breakdowns in these cases.
While my initial expectation was to find a large majority of 5-4 vote cases with these dissents, there were as many 5-4 decisions as there were decisions with two dissenting votes: 10 each. My original presumption was based on the expectation that the ideological divisions in 5-4 decisions would precipitate more vehement language in the dissenting opinions. The results show that there is no one voting spread that far-surpasses the rest in terms of frequency and there were even two per-curiam opinions that provoked this type of dissent.
The next figure focuses on the dissenting coalitions in the 5-4 decisions with strongly worded dissents.
There is a clear ideological rift when these dissents are the outcome in close vote cases. The one uniform dissenting bloc with strongly worded decisions is composed of the conservative Justices Roberts, Alito, Scalia, and Thomas who account for dissenting votes in 7 of the 10 total 5-4 decisions in this set.
This brings up a consistency across these dissents: the frequency is much greater from the conservative rather than the liberal end of the spectrum. While this finding is interesting it may also stem from the dispositions of the individual justices and their typical rhetoric.
When examining rhetoric in a vacuum, possibly the most elegant writer of recent years, Justice Scalia, conveyed the least self-censorship leading to the most interesting and scathing dissents in this examination. In terms of totals though, Scalia’s dissents only accounts for 4 of the 39. The next figure gives a breakdown of the number of dissents per justice in this group of 39.
Justice Thomas’ dissents account for 49% or 19 of the 39 dissents. When we add in Justice Roberts’ 6 dissents we get to 64% of the 39 total. Not only does the large portion from these two justices correlate with the portion of 5-4 decisions with such dissents from conservative justices, but it also underscores Justice Thomas’ unique role as a counter to the majority. The source of Justice Thomas’ frustration which functions as an impetus to his compositions could derive from numerous sources including, but not limited to his unique brand of originalism that does not perfectly parallel the interpretative strategies of any of the other Justices. This possibility that this difference in strategy led to Justice Thomas’ dissents is highlighted by the two dissents in these cases he wrote from Justice Scalia’s majority opinions. Justice Thomas rhetorical attacks against the Court’s majorities may stem from frustration based on a divergent understanding of the role of the Court, but it plays out in a consistent and easily identifiable fashion.
The following section presents examples of these strongly worded dissents in the form of excerpts from the text of these dissents:
Green v. Brennan, Thomas (dissenting)
The majority’s error is not merely one of regulatory misinterpretation. By misreading the regulation, the majority expands the constructive-discharge doctrine beyond its original bounds. In particular, the majority cements the (mistaken) notion that constructive discharge is an independent cause of action—and not a mere counterdefense—by unjustifiably focusing on an employee’s response to an employer’s conduct.”
Foster v. Chatman, Thomas (dissenting)
“Alas, ‘every end is instead a new beginning’ for a majority of this Court. Welch v. United States, ante, at 15 (Thomas, J., dissenting). I cannot go along with that “sort of sandbagging of state courts.” Miller-El v. Dretke, 545 U.S. 231, 279, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (Thomas, J., dissenting).”
Torres v. Lynch, Sotomayor (dissenting)
“As a result of the majority’s sleuthing, Luna — a long-time legal permanent resident — is foreclosed from even appealing to the sound discretion of the Attorney General to obtain relief from removal.”
Kernan v. Hinojosa, Sotomayor (dissenting)
“The majority’s second reason is even flimsier… It is mindboggling how one opinion necessarily disagrees with another opinion merely because it omits language that the other opinion also lacks.”
Husky International Electronics v. Ritz, Thomas (dissenting)
“At bottom, the majority’s attempt to broaden §523(a)(2)(A) to cover fraudulent transfers impermissibly second-guesses Congress’ choices. When Congress wants to stop a debtor from discharging a debt that he has concealed through a fraudulent transfer scheme, it ordinarily says so.”
Heffernan v. City of Patterson, Thomas (dissenting)
“To get around this problem of factual impossibility, the majority reframes Heffernan’s case as one about the City’s lack of power to act with unconstitutional motives.”
Markazi v. Peterson, Roberts (dissenting)
“By that measure of ‘plenty,’ the majority would have to uphold a law directing judgment for Smith if the court finds that Jones was duly served with notice of the proceedings, and that Smith’s claim was within the statute of limitations. In reality, the Court’s “plenty” is plenty of nothing, and, apparently, nothing is plenty for the Court.”
Franchise Tax Board of California v. Hyatt, Roberts (dissenting)
The majority concludes that in the sovereign immunity context, the Full Faith and Credit Clause is not a choice of law provision, but a create-your-own-law provision: The Court does not require the Nevada Supreme Court to apply either Nevada law (no immunity for the Board) or California law (complete immunity for the Board), but instead requires a new hybrid rule, under which the Board enjoys partial immunity.
Welch v. United States, Thomas (dissenting)
“Rather than grappling with these issues, the majority distorts the standard for reviewing certificates of appealability.”
Tyson Foods v. Bouapheko, Thomas (dissenting)
“Either way, the majority’s misinterpretation of Mt. Clemens will profoundly affect future FLSA-based class actions—which have already increased dramatically in recent years.”
Lockhart v. United States, Kagan (dissenting)
“And the majority is wrong too in suggesting that the ‘odd repetition’ in §2252(b)(2)’s list of state predicates causes the series-qualifier principle to lose its force. Ibid. The majority’s own made-up sentence proves that much.”
Montgomery v. Louisiana, Scalia (dissenting)
[My favorite of the bunch]: “So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility. And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.” Ante, at 21. Mission accomplished.
FERC v. EPSA, Scalia (dissenting)
“The majority blithely overlooks this concession in favor of its own my-opic view of retail pricing—all the while evading the incon-venient fact that fiddling with the effective retail price of electric energy, be it through incentive payments or hypothetical credits, regulates retail sales of electric energy no less than does direct ratesetting.”
Kansas v. Carr, Sotomayor (dissenting)
“By this observation, and with no experience with the needs of juries, the majority denigrates the many States that do specify a burden of proof for the existence of mitigating factors as a matter of state law, presumably under the belief that it is, in fact, “possible” to do so.”
Campbell-Ewald v. Gomez, Roberts (dissenting)
“The good news is that this case is limited to its facts. The majority holds that an offer of complete relief is insufficient to moot a case. The majority does not say that payment of complete relief leads to the same result. For aught that appears, the majority’s analysis may have come out differently if Campbell had deposited the offered funds with the District Court.”
Mullenix v. Luna, Sotomayor (dissenting)
“Thus framed, it is apparent that the majority’s exhortation that the right at stake not be defined at “a high level of generality,” see ante, at ___, 193 L. Ed. 2d, at 262, is a red herring. The majority adduces various facts that the Fifth Circuit supposedly ignored in its qualified immunity analysis.”
Arizona State Legislature v. Arizona Independent Redistricting Commission, Roberts (dissenting)
“The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean ‘the people.’”
Michigan v. EPA, Kagan (dissenting)
“The central flaw of the majority opinion is that it ignores everything but one thing EPA did.”
Obergefell v. Hodges
1) Roberts (dissenting)
“In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937”
2) Scalia (dissenting)
“The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”
3) Thomas (dissenting)
“If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”
Texas Housing v. Independent Community, Thomas (dissenting)
“It takes considerable audacity for today’s majority to describe the origins of racial imbalances in housing, ante, at , 192 L. Ed. 2d, at 529-530, without acknowledging this Court’s role in the development of this phenomenon… Today’s majority, however, apparently is as content to rewrite history as it is to rewrite statutes.”
Brumfield v. Cain, Thomas (dissenting)
“What is perhaps more disheartening than the majority’s disregard for both AEDPA and our precedents is its disregard for the human cost of its decision. It spares not a thought for the 20 years of judicial proceedings that its decision so casually extends. It spares no more than a sentence to describe the crime for which a Louisiana jury sentenced Brumfield to death. It barely spares the two words necessary to identify Brumfield’s victim, Betty Smothers, by name. She and her family—not to mention our legal system—deserve better.”
Baker Botts v. Asarco, Breyer (dissenting)
“But the majority does not believe that preparing for or appearing at such a hearing—an integral part of fee-defense work—is compensable. The majority simply cannot reconcile its narrow interpretation of “reasonable compensation” with §330(a)(6)’s provision for fee-application preparation fees.”
Elonis v. United States, Thomas (dissenting)
“The majority’s muddying of the waters cannot obscure the fact that today’s decision is irreconcilable with Rosen and Hamling.”
Mellouli v. Lynch, Thomas (dissenting)
“The majority thinks differently, rejecting the only plausible reading of this provision and adopting an interpretation that finds no purchase in the text. I fail to understand why it chooses to do so, apart from a gut instinct that an educated professional engaged to an American citizen should not be removed for concealing unspecified orange tablets in his sock.”
Wellness International Network v. Sharif
1) Roberts (dissenting)
“The majority’s acquiescence in the erosion of our constitutional power sets a precedent that I fear we will regret.”
2) Thomas (dissenting)
“That question is a difficult one, and the majority makes a grave mistake by skipping over it in its quest to answer the question whether consent can authorize a constitutional violation.”
Comptroller v. Wynne
1) Thomas (dissenting)
“I am doubtful that the majority’s application of one of our many negative Commerce Clause tests is correct under our precedents, see ante, at ___ – ___, 191 L. Ed. 2d, at 840-841 (Scalia, J., dissenting); post, at ___ – ___, 191 L. Ed. 2d, at 849-855 (Ginsburg, J., dissenting), but I am certain that the majority’s result is incorrect under our Constitution.”
2) Ginsburg (dissenting)
“The majority dismisses what we said in Goldberg v. Sweet, 488 U.S. 252, 109 S. Ct. 582, 102 L. Ed. 2d 607 (1989), as “dictum” allegedly “repudiated” by the Court in West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 203, 114 S. Ct. 2205, 129 L. Ed. 2d 157 (1994). Ante, at ___ – ___, 191 L. Ed. 2d, at 826-827. That is doubly wrong.”
United States v. Wong, Alito (dissenting)
“This error matters because the majority’s jurisdictional analysis literally begins and ends with Irwin, see ante, at ___ – ___, ___, 191 L. Ed. 2d, at 540-542, 549, and thus relies on a presumption that should have no bearing on the question. Without that presumption, the majority could not so readily ignore the unmistakable evidence that §2401(b)’s limits are jurisdictional.”
Rodriguez v. United States, Kennedy (dissenting)
“Rather than adhere to the reasonableness requirement that we have repeatedly characterized as the “touchstone of the Fourth Amendment,” Brigham City, supra, at 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650, the majority constructed a test of its own that is inconsistent with our precedents.”
Alabama Legislative Black Caucus v. Alabama, Scalia (dissenting)
“Like the DOJ, today’s majority sides with appellants, faulting Alabama for choosing the wrong percentage of blacks in the State’s majority-black districts, or at least for arriving at that percentage using the wrong reasoning. In doing so, the Court—along with appellants and the DOJ—exacerbates a problem many years in the making.”
B&B Hardware v. Hargis Industries, Thomas (dissenting)
In addition to being unsupported by our precedents or historical evidence, the majority’s application of administrative preclusion raises serious constitutional concerns.
Alabama Dept. of Revenue v. CSX Transportation, Thomas (dissenting)
“The majority’s interpretation of §11501(b)(1) derails ambiguous text from clarifying context. The result it reaches is predictably unworkable. And it prolongs Alabama’s burden of litigating a baseless claim of discrimination that should have been dismissed long ago.”
Kansas v. Nebraska, Thomas (dissenting)
“Today, however, the majority disregards these limits. Invoking equitable powers, without equitable principles, the majority ignores the principles of contract law that we have traditionally applied to compact disputes between sovereign States. It authorizes an arbitrary award of disgorgement for breach of that contract. And, it invents a new theory of contract reformation to rewrite the agreed-upon terms of that contract.”
Teva Pharmaceuticals v. Sandoz, Thomas (dissenting)
“In short, the majority’s rule finds no support in either the historical understanding of “findings of fact” or considerations of policy that have served as our guide when we have been confronted with a difficult question of fact-law classification.”
Jennings v. Stephens, Thomas (dissenting)
“The majority’s decision undermines that legislative choice and, in so doing, transforms the understanding of conditional-release orders that has prevailed since the Court first announced their creation.”
Dart Cherokee v. Owens, Thomas (dissenting)
“To justify its action here, the majority quietly extends an opinion of this Court holding that applications for certificates of appealability (COAs) in the federal habeas context are “cases.” Hohn, supra, 118 S. Ct. 1969, 141 L. Ed. 2d 242. Hohn was wrongly decided, and the majority’s uncritical extension of its holding only compounds the error…No such osmosis could transform an application for permission to appeal a remand order into a ‘case.'”
5 Comments Add yours
Very interesting analysis. Missed one of my favorite dissents, however. See Genesis HealthCare Corp. v. Symczyk, 133 S. Ct. 1523, 1532 (2013) (Kagan, J., dissenting). “The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it. The issue here, the majority tells us, is whether a “‘ collective action’” brought under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §201 et seq., “is justiciable when the lone plaintiff’s individual claim becomes moot.” . . . That thrice asserted view [that an offer of judgment moots a case] is wrong, wrong, and wrong again.” Id. at 1533.
Thanks Chris –
Looks like this would have definitely made it into my analysis if I had pushed back to OT 2012.