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A Surprising Snapshot—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on March 23, 2011.

A Surprising Snapshot
By Linda Greenhouse ’78 MSL

Among common impressions of the current Supreme Court are that Justices Antonin Scalia and Clarence Thomas are joined at the hip and that the majority tilts reflexively in favor of corporations and employers.

As the court heads into the currentterm’s final three months, I looked at the statistics. What I found surprised me:

• In decisions that have split the court in any direction, Justices Scalia and Thomas have voted on opposite sides more often than they voted together. They differed in all three of the non-unanimous criminal-law cases that the court has decided so far.

• Employees suing companies for civil rights violations have won all three cases decided so far, two of them by votes of 8-0 (with Justice Elena Kagan recused).

• By wide margins, the court has rejected arguments put forward by corporate defendants in several cases. It refused to permit corporations to claim a personal-privacy exemption from disclosure of law-enforcement records under the Freedom of Information Act. It permitted a liability suit to proceed against an automobile manufacturer for not installing the safest kind of back-seat passenger restraint. And in a unanimous opinion on Tuesday, the court refused to throw out a lawsuit by investors alleging that a drug manufacturer’s failure to disclose reports that some patients using its cold remedy had lost their sense of smell amounted to securities fraud.

What accounts for the topsy-turvy world of the Supreme Court’s 2010-2011 term?

One answer might be that the deviation from expected behavior is just an illusion, based on a small number of decisions that might not prove representative of the term as a whole. The court has decided 25 cases so far, with about twice that many yet to come by the time the term ends in late June. Some of the term’s more important cases, including Wal-Mart’s appeal in a huge class-action sex-discrimination suit, have not yet even been argued.

Still, when the court decides so few cases — 73 last year — 25 decisions count for something. At the very least, this preliminary snapshot reminds those of us (and I include myself) who think they have taken the court’s measure that assumptions are a poor substitute for close observation. So that’s what this column is: a portrait of a term in progress.

When I looked at voting patterns, I was surprised by what the numbers revealed: that in the divided cases, Chief Justice John G. Roberts Jr. has voted more often with Justices Stephen G. Breyer and Sonia Sotomayor than with Justices Thomas, Scalia or Samuel A. Alito Jr. The number of cases is small, only nine, and there was no particular ideological spin to most of the decisions, so this is not to suggest that the term will disprove characterizations of the Roberts court, or the chief justice himself, as conservative.

Even so, it is worth noting that in eight of these nine cases (not all the same eight), the chief justice and Justices Breyer, Sotomayor and/or Anthony M. Kennedy saw things the same way. (Justice Kagan’s previous service as solicitor general has required her to stay out of so many cases — 15 of the 25 decided so far — that I am not using her votes in these calculations.)

Chief Justice Roberts has yet to cast a dissenting vote this term; with the exception of Justice Kagan, every otherjustice has dissented at least once (probably the most eye-catching dissent so far is Justice Alito’s solitary dissent in Snyder v. Phelps, the 8-to-1 decision according First Amendment protection to the obnoxious funeral-picketing activities of the Westboro Baptist Church). And every justice, including Justice Kagan, has written more than one majority opinion, with one glaring exception: Justice Thomas, who has yet to write for the majority in any case this term.

That’s not to say that Justice Thomas has been silent (except on the bench during oral argument). He has written three dissenting and four concurring opinions. He gave the keynote address last month in Charlottesville, Va., at the annual student symposium of the Federalist Society, a national organization of conservative law students and lawyers. There, he offered a vigorous defense of his wife, Virginia, against criticism of her political activism.

“There is a price to pay today for standing in defense of your Constitution,” he said. Recognizing his wife in the audience, Justice Thomas said that the two of them were “equally yoked,” “believe in the same things” and were “focused on defending liberty.” Their critics, he warned, “seem bent on undermining” the court itself.

Assuming that Justice Thomas has received the same number of opinion-writing assignments as his colleagues — one or two cases from each of the court’s monthly argument sittings — the absence of majority opinions in his name is striking.
Granted, once a justice gets an assignment, the timing of the release of the opinion is not completely under his or her control. The need to satisfy a fractious majority can require multiple drafts, or those justices writing dissenting opinions can take their time, perhaps hoping to peel off a fifth vote and change the outcome.

The court’s eventual opinion in a case called Connick v. Thompson, argued back on Oct. 6, may be revealing. It is the only undecided case left from among the 12 the justices heard during the first month of the term, so by deduction, the opinion assignment should have gone to Justice Thomas, the only justice without a majority opinion from that session (Justice Kennedy and Justice Ruth Bader Ginsburg each have two.)

The question in the case is a tricky one: whether a district attorney’s office can be held liable for damages based on a prosecutor’s intentional withholding of evidence that casts doubt on the defendant’s guilt. It’s easy to imagine the court deeply split over a case with disturbing facts (the defendant spent 14 years on death row and came close to being executed before the previously withheld blood evidence came to light) that nonetheless runs up against the court’s extreme reluctance to permit damage suits of this kind, even for egregious official misbehavior. Perhaps Justice Thomas, having received the initial assignment to write the majority opinion, has been unable to hold four other justices to his approach to this case. Or perhaps a dissenting opinion is taking a long time to incubate.

As a case about civil damages, the Connick case does not directly involve criminal law. No one disputes the prosecution’s duty to turn over exculpatory evidence; the question is whether the prosecutor’s office can be held liable for failing to train its staff to observe this very basic requirement. On issues of pure criminal law and procedure, including sentencing, Justices Thomas and Scalia have for some time demonstrated distinctly different points of view. Earlier this month, Justice Scalia joined Justice Sotomayor’s opinion permitting district judges in resentencing proceedings to grant leniency to defendants who have managed to rehabilitate themselves after the initial sentencing. In a solitary dissent, Justice Thomas wrote that he still regarded the federal sentencing guidelines as mandatory, despite the court’s ruling six years ago that rendered the guidelines “advisory.” Justice Thomas expressed sympathy for the defendant in this case, but said the district judge had no discretion to give a lighter sentence than the guidelines provided.

The two justices also diverged on the confrontation clause issue that provoked Justice Scalia’s vigorous dissent last month from another majority opinion by Justice Sotomayor. The question was whether a dying man gave the equivalent of testimony when he told the police the name of the man who shot him; if so, the victim’s statements to the police could not be introduced at trial because cross-examination would not be possible. In a separate opinion, Justice Thomas agreed with the majority that the encounter between the victim and the police was not testimonial. Justice Scalia, whose view of the Sixth Amendment confrontation right is categorical, insisted otherwise.

In all of the last term, Justices Scalia and Thomas were on opposite sides only six times. Already this term, they have split in five cases. An aberration or a trend? Watch and wait.