To use Jon Stewart's (incorrect) description of O'Connor, Thomas is the "most principled justice." That is, he has a set of principles that he refused to compromise on. This is most cleared seen in Section 5 and the strip search case.

By the same token, was Justice Douglas our greatest Justice during his interminable tenure on the Court? He constantly wrote solo dissents, such as in Younger, Terry, and several other cases.

Being ideologically different from your colleagues is not a sign of greatness.

Being ideologically different from your colleagues is not a sign of greatness.

But on the other hand, I think we see an internally-consistent world-view from Justice Thomas; far more so than any other I've observed in the past several years. I'm no academic, but I'm becoming more and more impressed with Justice Thomas's jurisprudence as time goes on.

I have a deep and profound respect for Justice Thomas. Instead of engaging his ideas, the commentariat of the left seems content to put fingers in their ears, saying, "You're dumb!"

It seems to me the difference between Justice Douglas and Justice Thomas is that Justice Thomas writes reasoned opinions backing up his dissents. As I understand it, Justice Douglas would infuriate his colleagues by writing quickly whatever came to his head so as to not interfere with his trips to Washington state.

You see Breyer cross over from time to time. The Gratz case, for one, and certainly the Apprendi line of cases he takes a different view than Stevens, Souter, and Ginsburg.

Thomas is the best justice. What I find wonderful about Thomas is that he doesn't write pages and pages trying to show how smart he is. I think that many (most?) of the other justices do that, even Scalia.

If you are going to argue that the most "principled" justices are those who least frequently incorporate outcome preferences in their decision making, aren't you implicitly adopting a premise that *any* use of outcome-preferences in decision-making is "unprincipled" and should be avoided?

In other words, if someone is non-outcome oriented in an overwhelming majority of cases, disavows outcome-oriented jurisprudence, but is outcome oriented in the 2% of cases that matter most to them, aren't they actually *less* principled than someone who admits that outcomes are an important part of judging?

In a way, I think there's a good case to be made for Kennedy as the most "principled" justice - he's reliably outcome-oriented when he judges a fundamental liberty interest to be at stake, and freely acknowledges as much. Otherwise, he's less outcome-oriented. Isn't that consistent application of a principle, even if you disagree with the principle itself?

I personally view Brennan as the least "principled" justice that I know of - someone who was always outcome oriented but skirted acknowledgment thereof.

Is Thomas' dissent in Virginia v. Black, for example, not one of the most outcome-oriented arguments one could imagine?

Thomas is the best justice. What I find wonderful about Thomas is that he doesn't write pages and pages trying to show how smart he is. I think that many (most?) of the other justices do that, even Scalia.

Before I went to law school, I held negative preconceptions about Thomas. But now, he is my favorite Justice. I may disagree with him on some issues, but I appreciate the simplicity of his opinions. And I mean simple as in easily understood (and not as unintelligent).

I might add that I have considerable respect for Justice Thomas, and his profoundly held value systme, but because I recognize that my value system is largely incompatible with his, his presence on the court frightens me just the same.

Thomas is the best justice. What I find wonderful about Thomas is that he doesn't write pages and pages trying to show how smart he is. I think that many (most?) of the other justices do that, even Scalia.

I assume you mean "especially Scalia"?

martinned:
The problem is, of course, that any "cross-over" by one of the liberal four will normally lead to a 6-3 ruling, making the cross-over much less noticable. There have been quite a number of 6-3 and 7-2 rulings this term (and any term, for that matter) where one or two of the liberal justices have joined the conservative majority.

IANAL, and don't follow the SCOTUS as intensely as lawyers do. Can you tell me if all the 6-3, 7-2 and up rulings are always because liberals have sold their souls and crossed over to the dark side? Or do there happen to be as many similar rulings where the conservatives cross over and join their more enlightened brethren?

David Mader,
I think the chart you meant to link to is here

Thomas now our greatest justice?

Has April Fool's day moved?

Martinned, that's a very good point. Looking at that excellent chart, Justice Breyer for one is quite likely to side with the conservatives (or more accurately the conservatives+Kennedy), albeit perhaps not on 'red-meat' cases.

Interestingly, from a probably worthless but diverting 'functional' perspective, the 7-2s would appear to be mainly a result of conservatives compromising than of liberals compromising.

In the most important case on which Justice Thomas has participated, power trumped ideas for Justice Thomas and the majority.

That case was Bush v. Gore.

I'm not sure I would call it his "most important" case, and I don't think the case is as indefensible as many on the left seem to think. But I do agree that for Thomas especially it's not particularly principled--- I find it very difficult to believe that he really believes in such an expansive notion of equal protection permitting federal control of states' conduct of their own elections.

In the most important case on which Justice Thomas has participated, power trumped ideas for Justice Thomas and the majority.

That case was Bush v. Gore.

Did "power trump[] ideas" for Breyer and Souter as well?

The left's constant re-write of history cracks me up. Thomas was part of a seven-Justice majority that included a Clinton appointee. There were plenty of reasons, other than "power," that explain his vote ... unless you also think that Breyer is a Republican mole, who dedicated his life to liberal judging in the hopes that, if he played his cards right, one day he could stick it to Al Gore.

I'll stick with the alternative hypothesis, i.e., using different standards of counting in different areas is not "equal," and there is nothing wrong with Thomas saying so.

In the most important case on which Justice Thomas has participated, power trumped ideas for Justice Thomas and the majority.

That case was Bush v. Gore.

If Gore had gotten the recount he desired, he would've lost anyway. So the outcome of the case had no impact on the elections at all, except perhaps avoiding a delay in counting that would've put the decision to the House. Now that would've been a constitutional disaster.

Any fool could provide "innovative" ideas, and it is certainly no measure of a "great justice."

This nonsense of liberals screaming "affermative action" is just further proof of the conservative inability to grapple with reality. The only reason, and I do mean only reason, Thomas was able to overcome sexually abusing a woman working for him was accusing liberal senators of a "political lynching." It was never the liberals who played the race card, it was the "great man" himself, providing a brilliant example of his hypocritical, narcissistic, and dangerous role on the supreme court.

@Brian G, apparently, there's even worse stuff

This is right up there with the saddled dinosaurs in museums. There is something disquieting going on in this country.

I remember in '00 watching Dershowitz on tv being interviewed following the Bush v. Gore decision, and he was just spitting fire, simply en fuego, and focusing especially on Scalia, mocking him for a new found interpretation and seeming inconsistency. I don't have a clue yet today why he was so lit up, but I dig the passion. Good stuff.
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martinned, your link shows 23 decisions that went 5-4 in the just-completed SC term. 11 of them were "conservative" bloc majority decisions, so in 48% of the close calls, the votes seem formulaic, with both blocs holding.

Of the remaining 12 close decisions, Vice President Kennedy joined the "liberal" bloc 5 times, Scalia twice and Thomas once, meaning that in 83% of the total close decisions, the "liberal" bloc isn't moving very liberally. In fact, it is not moving at all.

The 3 "liberal" judges Ginsburg/Stevens/Souter vote as a bloc 91% of the time, while Roberts is his own one-man "conservative" bloc 100% of the time. The other 5 flit about hither and yon it seems, in the 7 cases which are absent VP Kennedy's majority vote. But again, statistically, this subset of 7 cases demonstrates monolithicism in the 3 "liberal" bloc members, which finds itself in a majority only because some "conservative" judges have attached themselves to their monolith, temporarily.

Of 23 total cases, one or more "conservative" judges joins the "liberal" bloc majority decision 52% of the time... so over half of the cases involve cross pollination between blocs, but that pollination is always one-way, and not the other. The 3 "liberal" bloc holds 91% of the time.

It is this 3 "liberal" bloc that is the most striking feature here. It stands out, starkly.

I'm sure the cases reviewed introduce a good bit of nuance to any statistical review, and it sure as heck better, because this allegedly "liberal" group seems quite rigid, judging by a hard analysis.

makr:
Thomas was able to overcome sexually abusing a woman working for him...

Nobody ever claimed that Thomas sexually abused anybody. He was accused of salacious conversation. Try to keep your fervid imagination under control.

When Prof. Volokh wrote the article about how the justices voted in 1st amendment cases, the scoring showed that Thomas he sided more with the liberal justices than the conservative justices.
http://www.law.ucla.edu/volokh/howvoted.htm

Here's how Prof. Volokh scored it, from most pro first amendment votes to fewest:

1 Kennedy 74.5%
2 (tie) Thomas 61.1%; Souter 61.0%
4 Stevens 55.7%
5 Ginsburg 53.6%
6 Scalia 49.6%
7 O’Connor 44.7%
8 Rehnquist 41.8%
9 Breyer 39.7%

I was very happy to see Thomas' consistency in these cases.

I was always conservative, but I noted that Scalia seemed to depart from his basic conservative principles when necessary to get an outcome that he liked. The one that bothered me was GONZALES V. RAICH. After Salia's concurrence, where Scalia went beyond according the feds the power to regulate "activities that “substantially affect” interstate commerce. Scalia wrote, "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce," I basically wrote Scalia off as untrustworthy and greatly appreciated Thomas' dissent.

But I've also been reading that Thomas and Scalia both have issues with incorporation (I do want to see the 2nd Amendment incorporated against the states). I know I can't have it both ways but I hope both of them to depart from this to protect our 2A rights.

I was always conservative, but I noted that Scalia seemed to depart from his basic conservative principles when necessary to get an outcome that he liked. The one that bothered me was GONZALES V. RAICH. After Scalia's concurrence, where Scalia went beyond according the feds the power to regulate "activities that “substantially affect” interstate commerce. Scalia wrote, "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce," I basically wrote Scalia off as untrustworthy and greatly appreciated Thomas' dissent.

Precisely the problem with Scalia. Thomas lives up to his principles, Scalia ignores them when they lead to a result he doesn't like. Gonzales v. Raich was a glaring example of this difference. Thus from Scalia we get what amounts to the "drugs are bad" exception to the federal government's limited jurisdiction under Article I.

For another case along similar lines, check out Lujan v. Defenders of Wildlife where Scalia opines that the President's duty to take care that the laws be faithfully executed is actually a presidential power that restricts Congress. Naturally he doesn't cite any evidence that this was the original understanding of this language, or any precedent, he's just making it up because that's the way he'd like things to be.

@geokstr: It's always tricky to talk about such things without doing detailed statistics. All I know is that Kennedy voted with the conservative 4 in 11 5-4 cases this term, and with the liberal 4 in 4 5-4 cases. That's a highly imperfect metric, but for now it'll have to do, as far as Kennedy's position is concerned.

6-3 decisions are more likely to be the result of "liberal movement", because (assuming for ease that the justice's vote is fully determined by their position on the left/right scale), a 6-3 can be achieved either by one of the liberal 4 joining an essentially conservative opinion, or by Kennedy + one of the conservatives joining an essentially liberal opinion. In other words, by excluding 6-3 cases from the sample, as rosetta's stones has again done in his most recent comment (he, like me, is too lazy to do the full statistics, I imagine), one ends up overstating the degree of coherence in the liberal block. (If Kennedy or one of the other conservatives, like Scalia yesterday, joins a liberal opinion, the case ends up in the sample, but if a liberal joins Kennedy and the conservatives, the case is 6-3 and therefore left out of the sample.) In statistics, this is called selection bias.

I finished the first count. Subject to counting error, I counted 54 cases where the liberal 4 voted together, and 61 cases where the conservative 4 voted together. That includes the unanimous cases.

I also count 26 unanimous decisions this term. Subtracting those from the previous count, we get 28 non-unanimous cases where the liberal four voted together, and 35 cases non-unanimous cases where the conservative four voted together.

As before, this counts Kennedy as neither a liberal nor a conservative.

rosetta's stones: Actually, statistics lie all the time.

In my opinion, Thomas is superior to Scalia. Mainstream US "liberals" do expose a bit of their racism with the whole "Thomas is a silent moronic Scalia clone" game. (Of course, the American Right--for example, most of y'all on this blog--are quite racist, and generally objectively more so than your Democratic party enemies.)

Scalia's intellect is greatly overvalued in US legal culture, probably because he's very good at playing on the legal profession's innate servility and masochistic love of hypermasculine authority figures. His judicial philosophy barely survives the "laugh test," his writing is overblown, bombastic, and excessive, and his attacks against those who come to different conclusions than he does are extremely intemperate and not befitting the power of his office.

This is not to say that Thomas's judicial philosophy is very compelling--it's basically a combination of rightist-libertarian crypto-fascism &Catholic authoritarianism. But he's better than Scalia.

"I also count 26 unanimous decisions this term. Subtracting those from the previous count, we get 28 non-unanimous cases where the liberal four voted together, and 35 cases non-unanimous cases where the conservative four voted together.

As before, this counts Kennedy as neither a liberal nor a conservative."

I put "liberal" and "conservative" in quotes, because right now, I don't think ideology is important in our analysis, It's more important to identify names, and identify voting patterns, and let that analysis drive us to whatever ideological/political/whateverthefuqq explanations we bring to bear. First things first.

You seem to be shying away from noticing the clear trend shown by that analysis, however.

You're right about ignoring the unanimous decisions, and I'd ignore 8-1 and 7-2 for that matter, as mentioned previously. You're not going to like what the data tells us after we do that, however, because the monolithic trend as a % of the revised subset of cases is going to magnify the effects of the monolith. I can see why you're shying away.

Just as an opener, it feels flat out wrong that 11 of the 23 cases decided 5-4 are compromised by precisely the same roster split... the exact same names. Couple that with the monolithic trend, and we see we have a problem here. Somebody's stuck in a trend, or an ideology, or something, and it can't be the guys who are moving, because they are moving 52% of the time. They ain't stuck.

This court's scorecard is skewed, and I think the data shows it. And, I think it shows who's doing the skewing. Why? That may be arguable.

So if one of the four liberals moves, the other three are still a block, but if one of the conservatives moves, it's "cross pollination"?

One or more of all judges in the "conservative" bloc, with the exception of Roberts, is moving in 52% of those 5-4 decisions. In those same cases, the "liberal" bloc of 3 is monolithic... ALL OF THEM TOGETHER... 91% of the time. And 82% of those cases, the full "liberal" bloc of 4 votes together.


All less Roberts of the "conservative" judges demonstrate they'll move. The "liberal" bloc doesn't move. It is a monolith.


Do you not get this, really?

So in all cases where you identify a liberal block of only 3, one of them moved.

Right, in the 23 cased decided 5-4, only 4 times did one and only 1 "liberal" judge managed to shear themself away from the monolith. 82% of the time, they vote as a monolith.

In 52% of those same cases, a "conservative" judge makes the (obviously not uncommon for the "conservative" bloc) decision to (temporarily) join the monolith.

And, as before, counting only 5-4 cases skewers the result.

Again, that's where the rubber meets the road, if we're looking for trends in the cases that matter, and are in dispute. Do you really not see the trend here... really... or are you just shamming?

No foolish Wiki distractions here, please. This is too simple an analysis to introduce distractions. It's simple enough that even a lawyer should be able to understand it.

...Souter signs on to the majority opinion. A "liberal" justice has moved. The result is a case that is voted 6-3, and it does not get counted in your sample of "close cases".

That could have only happened in one of the only thirteen 6-3 cases this term, and as mentioned, a quick scan says that in most of those, the "liberal" bloc of 3 held firm, even if 1 and only 1 "liberal" managed somehow to be dynamited off the monolith.

"Kennedy joins his conservative friends, as he has done half the time in 5-4 cases alone. Now the lineup is 5-4 in favour of a conservative result."

Right, and the "liberal" bloc of 4 remains monolithic in that case, as it does in 82% of 5-4 cases. Afterall, it's a monolith.

Finally, while the justices exchange their draft opinions, SouterAlito signs on to the majorityminority opinion. A "liberal""conservative" justice has moved. The result is a case that is voted 6-35-4, and it does not get counted in your sample of "close cases".

Of course it's counted. It's a 5-4 decision, as you posited it, one of the 23 this past term, and one in which undoubtedly the "liberal" bloc of 3 holds, just as it holds in 91% of these 5-4 decisions.

Which is unlike the 52% of these 5-4 cases, in which one or more of the "conservative" bloc crosses over and votes with the "liberal" bloc, which of course remains 91% monolithic and rock solid, as always.

We need a lawyer with some statistical savvy to explain this, I guess. For me, this is a clear trend, and one of us is missing something here, clearly.

Ignoring 9-0 and 8-1 cases, by my count (and ayzc's link) there were 42 cases where at least one of the blocks (either the 4 liberals or the 5 conservatives) stuck together on the same side of the case. 11 of those were 5-4 cases where both blocks stuck together, 14 were cases where the 4 liberals all stuck together and 1 or more of the 5 conservatives joined them, and 17 were cases where the 5 conservatives all stuck together and 1 or more of the 4 liberals joined them. The justices, from most to least cross-overs, were Breyer with 11, Kennedy with 11, Souter with 7, Ginsburg with 6, Roberts with 4, Alito with 3, Scalia with 3, Thomas with 3, and Stevens with 2. So if anything the liberals are slightly more willing to cross over than the conservatives (especially since we'd expect a coalition of 5 to be harder to hold together than a coalition of 4). Kennedy &Breyer were the most willing to cross over, and Souter &Ginsburg were somewhat more willing than the others to cross over.

In 16 of the 31 cases with crossovers only 1 justice crossed over: Breyer 6 times, Kennedy 5 times, Scalia 2 times, Thomas 1 time, Ginsburg 1 time, and Stevens 1 time. 11 times there were 2 crossoves: Souter &Breyer 3 times, Ginsburg &Souter 3 times, Ginsburg &Breyer 2 times, Stevens &Souter 1 time, Kennedy &Thomas 1 time, and Kennedy &Roberts 1 time. 4 times, 3 of the conservative justices crossed over to create a 7-2 decision: Kennedy, Roberts &Alito 2 times, Kennedy, Alito &Thomas 1 time, and Kennedy, Roberts &Scalia 1 time.

(If we treat Kennedy &Breyer as wildcards, and narrow the blocks down to 3 liberals &4 conservatives, then that only adds 3 cases to our set: 2 where Scalia &Thomas joined the 3 liberals for a 5-4 majority and 1 where Ginsburg, with Breyer, joined the 4 conservatives for a 6-3 majority.)

So if anything the liberals are slightly more willing to cross over than the conservatives

Which is essentially what I concluded as well. (For the record, a better statistical analysis yet would involve looking at several terms, ideally with the same justices.)

I just counted the frequency of each of the two big blocks voting together, and found the conservative block voting together slightly more (28 vs 35 in non-unanimous cases).

However, both you and the other guy are including cases other than the close cases, which are the ones that should be analyzed, if we're seeking to identify the potential existence of any type of significant politics/ideology/whateverthefuqq "pattern" that's skewing the scorecard... ... and these cases can only be the 5-4 or 6-3 cases. So, your sample group is too wide for the task at hand. You fail statistically, because you haven't set up the proper model for the task.

7-2 and 8-1 decisions, by definition, either are composed of one of the blocs joined by a significant portion of the opposite bloc, meaning the politics/ideology/whateverthefuqq "pattern" identified by the close cases clearly does not overlay, or the mix is too scattered to be identifiable as a "pattern" in any event. These cases must be left out of the sample group.

There is nothing to see in these cases, as these are clearly "housekeeping" issues. The court is at or near agreement. The rubber is not meeting the road here.

"I've also explained, with wiki-reference and everything, why it is a mistake to only look at the 5-4 cases. Looking at all 6-3 cases as well is better, but I don't see what is wrong with simply looking at all cases, or at least all non-unanimous cases."

No, you haven't explained, and you haven't refuted my contention that the close cases are where the "pattern" will emerge, and be of most significance. I believe you now see the trend that I've been struggling to explain to you, and now that you see it, and recognize it has significance, you're sliding off into trying to consider the entire body of cases. NO. That's not where the rubber meets the road. And that's not where we began this discussion.

"Certainly there is a difference between contentious, more political cases, and the rest, but you'd have to come up with some way of making the distinction other than by voting lineup, otherwise you're introducing a bias "

Yes, I am introducing a bias. I'm biased towards selecting a sample group of the contentious cases. That's the whole frickin' point.

Good God, you're a lawyer and an economist... the worst possible combination. No wonder this ain't gettin' through! ;-)




"So if anything the liberals are slightly more willing to cross over than the conservatives

Which is essentially what I concluded as well.

You concluded wrong, then. One or more "conservative" judges cross over 52% of the time in 5-4 cases, but this only happens 17% of the time with "liberal" bloc judges. And, the bloc of 3 remains intact even then, even as multiple "conservatives" cross over.

I said multiple cross over, in case that's not clear. That means, if I analyzed for total frequency, the numbers become even more skewed, fyi.
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Let's start at the beginning, first things first. We can review the "why" and "how", but first, you have to breathe in and accept the statistical analysis, and what it's platformed on:

Do you recognize the close cases as a (the?) critical subset for analysis of this court's functional scorecard?

Would you include the 5-4 cases primarily, with some runout to the 6-3 decisions, as the representation of that critical subset?

Do you recognize that in these 23 cases in that critical 5-4 subset, the "liberal" bloc of 4 votes together 82% of the time, and the "liberal" bloc of 3 votes together 91% of the time?

Let's start with those questions.

I liked Thomas' very short dissent in Lawrence v. Texas. Instead of Scalia's interminable gay bashing, Thomas simply said that he disagreed with the law but found no general right to privacy in the Constitution.

Aye. Lawrence was one of those cases where Thomas was just applying his judicial philosophy while Scalia was expressing his social conservatism barely hidden under the cloak of a legal argument. And Raich just proved the point. Scalia is still the best writer on the Court and the funniest Justice, but his reputation for greatness is somewhat overblown.

Thomas on the other hand should be getting more praise and respect, even from the people who don't agree with majority of his arguments. It's nice to see that some respectable people on the left, like Tom Goldstein are recognizing his emerging greatness. Shameful comments about "Uncle Thomas" are more and more becoming isolated to the Insane Left Internet asylums.

When I think that he's just 61 and could stay on the Court for 20 more years, it makes me giddy.

geokstr, I just wanted to keep my data analysis relatively simple, not take a strong stance on Kennedy's ideology. Kennedy does side with the conservatives against the liberals more often than not, which is why I grouped him with the conservatives, but you're right that he's more likely than the other conservatives to cross over and join the liberals. This term, at least, Breyer was pretty much the mirror image of Kennedy: he sided with the liberals against the conservatives more often than not, but he crossed over to the other side about as often as Kennedy did (and much more often than any of the other justices). So you might even call it a 4-1-1-3 split, with one relatively moderate leaner on each side. I used the 5-4 split for convenience, but I tried to give enough details about individual justices so that you could see the more fine-grained pattern.

I'll let martinned speak for himself, but I wasn't trying to claim that the conservative justices aren't open-minded. The quote from Tom Goldstein in the original post, and some of the comments (like those by rosetta's stones), assert that it is the other way around: the conservative justices are willing to cross over and the liberal justices are not. I looked at the data to see if that was true and found that it was not. Both sides cross over about equally often, and there is even a slight trend for liberals to cross over more (Breyer balances out Kennedy, and Souter &Ginsburg crossed over a bit more than the conservatives). With only a single term's data, though, the liberals' slightly greater tendency to cross over may just be due to chance variation, not a genuine difference. (Ironically, if we counted Kennedy as neutral and kept Breyer with the liberals, as you're suggesting, then the 4 liberals would be much more likely to cross over than the 4 core conservatives).

It's true that there weren't any 5-4 cases where a liberal joined the conservative side as the deciding vote, but that's just because of the composition of the court. Whenever a liberal or two joined the conservative side, the 5 conservatives (or the 4 conservatives plus Kennedy, if you'd prefer to describe it that way) almost always stuck together, giving the majority 6 or 7 votes. If the court had another liberal and one fewer conservative, then those 5-4 cases where a conservative joined the liberals would probably have been 6-3 cases, and the 6-3 cases where a liberal joined the conservative would probably have been 5-4 cases. Then we'd be talking about Breyer as a moderate swing justice, and admiring Ginsburg's principled decisions to join the conservative side in tight cases.

rosetta's stones wrote:

No, you didn't look at the data...


I mght note that simply repeating the same non-responsive arguments over and over again after several other posters take the time to make lengthy, responsive, and enlightening comments is probably not the best way to go about life. I think it's been shown that both martinned and blar did look at the data, and provided caveats with their analysis (look at larger data sets than one term, it depends on how you code Kennedy etc.) that shows that, unlike you, they weren't trying to reach an a priori conclusion.

Between this and your nasty comments on the recent health care thread, I'm not sure what's going on. I found that when I started commenting too much my quality and politeness declined- you might want to examine this phenomenon.