Over the past year the Supreme Court has in many ways lacked consistency. Its membership has changed, there was a long period of uncertainty as to the future ideological balance of the Court, and with this uncertain future the Court looked like it might make its first strong shift to the left since the Warren Court years. Even with the uncertainty, the balance of the Court never moved left of center. This makes it even more interesting that one commonality across the last several terms has been Justice Thomas’ unflagging tendency to dissent. The atypical frequency of Justice Thomas’ written dissents was the subject of a post from last term and it has continued into this term. The recent consistency of Justice Thomas’ dissents harkens back to one of history’s strongest proponents (and one of the most regular writers) of the dissenting opinion, Justice William Orville Douglas. But we can get to that in a moment.
First a look at how Justice Thomas has differentiated himself from the other Justices over the past several terms (* the focus of the dissents in this post is dissents from cases granted to the Court’s merits docket). As Bloomberg BNA’s Kimberly Robinson reports, this term has predominately seen unanimity among the Justices.
Still, so far this term Justice Thomas has more than doubled the written dissent count from any of the other Justices (he actually has one fewer written dissent than the combined total from all of the other Justices).
Justice Thomas’ penchant for the dissent is particularly noticeable starting in the 2014 term.
Prior to this he wrote dissents at a similar rate as the other Justices. Starting in 2014 though, we see Justice Thomas writing dissents at a far greater rate than any of the other Justices.
This greater propensity to write dissents than any of the other Justices is particularly interesting because of when and where it began – on a predominately conservative Court. Although Justice Thomas has disagreed with the Court’s majority more than the average across other Justices as long as he has sat on the Court, this disagreement is more pronounced since 2014.
Justice Thomas is not ideologically indiscriminate in his disagreements however. When we look at the Justices (of the seven others who sat with Justice Thomas prior to Justice Gorsuch’s confirmation) with whom Justice Thomas has most disagreed since 2010, his disagreement rate is much greater with the Court’s left than it is with the Court’s right.
In many of his dissents, Justice Thomas goes to substantial lengths to explain how his views are and have been different from those of the other Justices. This is clear from his dissents from the 2015 term alone. Below are examples from four of Justices’ dissent in the 2015 term from the cases from DIRECTV v. Imburgia, Ocasio v. United States, Montgomery v. Louisiana, and Foster v. Chatman.
Bringing this discussion back to similarities between Justices Thomas and Douglas, we don’t have to look much further than Justice Douglas’ own writings. A strong proponent of the dissent, Justice Douglas was also one of its most frequent users. The wording in his dissents and especially the way he differentiated his own views from those of the Court sound much like Justice Thomas’ dissents.
“The Court today makes an extraordinary excursion into the legislative field. In Fortnightly Corp. v. United Artists Television, 392 U.S. 390, the lower courts had found infringement of the copyright, but this Court reversed, holding that the CATV systems in Fortnightly were merely a “reception service” and were “on the viewer’s side of the line,” id., at 399, and therefore did not infringe the Copyright Act. They functioned by cable, reaching into towns which could not receive a TV signal due, say, to surrounding mountains, and expanded the reach of the TV signal beyond the confines of the area which a broadcaster’s telecast reached.” (Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974))
“Today’s decision reflects a miserly approach to the fashioning of federal remedies rectifying injuries to the collective interests of the citizens of a State through action by the State itself. It is reminiscent of the illstarred decision in Ohio v. Wyandotte Chemicals Corp.” (Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251 (1972))
“My Brother BRENNAN is to be commended for seeking a new path through the thicket which the Court entered when it undertook to sustain the constitutionality of obscenity laws and to place limits on their application. I have expressed on numerous occasions my disagreement with the basic decision that held that “obscenity” was not protected by the First Amendment. I disagreed also with the definitions that evolved. Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that “obscenity” was not an exception to the First Amendment. For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals.” (Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973))
From the 1946 through 1974 terms, Justice Douglas accumulated 584 written dissents. This large number was a product of the Supreme Court’s increased output during that time compared to now as well as Justice Douglas’ idiosyncratic behavior. When we compare Justice Douglas’ written dissent count over a six-year period where he wrote many dissents to Justice Thomas’ last six terms Justice Douglas’ raw numbers are far more substantial.
To properly compare Justice Thomas and Justice Douglas, we must normalize Justice Douglas’ counts against the number of opinions written during those years. Comparing Justice Douglas’ and Justice Thomas’ fraction of dissents from the Court’s entire merits dockets for those years Justice Thomas’ practice over the last couple of terms does not seem terribly different from that of Justice Douglas towards the end of his career.
Justice Douglas, like Justice Thomas was below the average rate-per-Justice of joining the Court’s majority across terms.
While Justice Thomas’ dissenting behavior clearly rose in recent terms, Justice Douglas was a consistently frequent dissenter throughout his career. While Justice Thomas’ agreement with the Court’s majority dipped in recent years, Justice Douglas’ agreement showed multiple dips both on conservative (Burger) and liberal (Warren) Courts. Given the Court’s current ideological valence, Justice Thomas may never be on a Court with a predominately liberal composition. This feature of the Court combined with Justice Thomas’ conservative jurisprudence will continue to make his fundamental disagreements with the Court’s majority prime fodder for analysis.
On Twitter: @AdamSFeldman