Justice Thomas authored the majority opinion in Home Depot v. Jackson released this morning. There are several facets of this decision that are worth noting. It was a 5-4 decision with the more liberal justices — Ginsburg, Sotomayor, Kagan, and Breyer — in the majority and the other more conservative justices — Roberts, Alito, Gorsuch, and Kavanaugh in dissent.
This is the fourth time Thomas has joined these four more liberal justices in a 5-4 decision. The other occasions were:
- CSX Transportation v. McBride (2010)
- Alleyne v. United States (2012)
- Walker v. Texas Div. Sons of Confederate Veterans (2014)
Thomas assigned the authorship of all three of these majority opinions and Home Depot is Thomas’ second opinion assignment this term.
Thomas assigns when the Chief Justice (Roberts) is in dissent and he is the senior most justice in the majority. Since Thomas is now the most senior justice on the Court this means Thomas assigns whenever Roberts is in dissent and Thomas is in the majority. The other time this term was in Stokeling v. United States where Thomas was joined by Breyer, Alito, Gorsuch, and Kavanaugh in the majority.
Thomas assigned majority opinions two other times in the past giving him now seven for his career on the Court. The other two times were last term with Patchak v. Zinke and in Dolan v. United States (2009). All of Thomas’ assignments have been in 5-4 decisions except for Patchak v. Zinke which was 6-3. This means Thomas has assigned opinions with the following majority compositions:
- Thomas, Ginsburg, Breyer, Kagan, and Sotomayor
- Thomas, Alito, Ginsburg, Sotomayor, and Breyer (Dolan)
- Thomas, Breyer, Alito, Gorsuch, and Kavanaugh (Stokeling)
- Thomas, Alito, Kagan, Ginsburg, Breyer, and Sotomayor (Patchak)
Home Depot is also the first time Thomas was in the majority when Kavanaugh was in dissent.