In a time of transition in the Supreme Court, much attention is paid to the Court’s ideological pulse. Justices Thomas and Alito, two of the more conservative Justices on the Court are the top two dissenter so far this Term (see below).
Justice Thomas in particular was noted for his lone dissent in the death penalty case Foster v. Chatman (see for example, here, here, and here). In the 57 written and signed decisions so far this Term, Justice Thomas dissented from an entire opinion 14 times. This approximately 25% dissent rate far exceeds any of his companions on the Court.
This brings up the question – Is Justice Thomas developing a disdain for the Court’s majority? Just this week a variety of outlets reported that Justice Thomas was debating retirement from the Court. While this rumor is purely anecdotal, this post can shed some light on the question of Justice Thomas’ frustration with the Court by making several comparisons of his dissenting behavior (historical data was located through the United States Supreme Court Database).
1) The first comparison is within Justice Thomas – specifically – is his behavior this Term comparable to how he has acted in the past? The Figure below tracks the number of Justice Thomas’ dissenting votes in orally argued cases per Term since he joined the Court.
Clearly Justice Thomas dissented from the most opinions in 2014 with 29. Based on the raw numbers he actually dissented from the second most cases in 1991, his first Term on the Court, with 22. The 2015 Term is still incomplete. Since the Court has heard a different number of cases per Term since Justice Thomas joined, the raw numbers do not provide the complete story of Justice Thomas’ dissents.
The next figure shows the fraction of the total cases in which Justice Thomas dissented by Term.
While Justice Thomas is on track to dissent in a high proportion of cases this Term compared with his term-by-term median, he is nowhere near his 43% dissent rate from the 2014 Term.
2) The second comparison is within the Terms since Justice Thomas joined the Court. Was Justice Thomas a top dissenter? If not which Justice was? Looking at the Justices’ total number of dissenting votes by Term since Justice Thomas joined the Court in 1991, the true Dissent King seems to be Justice Stevens. Justice Stevens dissented the most of all the Justices in 16 Terms between 1991 and 2009. This is compared with Justice Thomas who was the top dissenter three times from 1991 through 2014, including a tie in 2004 with Justice Stevens at 21 dissents. The Table below has the top dissenter for each Term from 1991 through 2014.
3) The final comparison is across the history of the modern Court. How does Justice Thomas’ dissenting behavior compare to other Justices who dissented heavily over the past nearly 70 Terms. In terms of aggregate numbers, he doesn’t hold a candle to them. The real heavy dissenters historically were Justices Douglas, Harlan, Brennan and Marshall. Comparing the most dissents per Term since 1946, these Justices cover the top 31 most dissents per Term. The table below presents the top 10 most dissents per Term since 1946.
The first Justice that makes this list since 1990 is Justice Stevens in the 1990 Term with 42 dissents. Just for context, this is tied for the 44th most dissents in a Term since 1946. Looking at these heavy dissenters another way though makes Justice Thomas’ numbers appear more eye-opening. In 1972, Justice Douglas’ top dissenting Term, the Court ruled in 186 cases. Justice Douglas’ 80 dissents gives him a 43% dissent rate, which equates to the same rate as Justice Thomas’ in 2014.
While Justice Thomas has dissented quite a bit this Term and last, this is a recent development. It may convey some of his frustration regarding the direction the Supreme Court is headed based on the rulings from the past several Terms. With a Court that may shift to the left depending on the next Justice appointed, this frustration may continue to grow. Based on historical evidence Justice Thomas’ dissent counts do not appear out of the ordinary, yet his increasing propensity to dissent in at a high rate of cases is worthy of identification.
On Twitter: @AdamSFeldman
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