I would be pleased no end if the Supreme Court consisted of Clarence Thomas and eight clones of him. It seems to me that Justice Thomas has been the most faithful adherent of the Constitution among all of the justices who have served on the Court since I became interested in its doings more than 50 years ago. Taking Thomas as the standard for constitutional judging, it is possible to grade some of the other justices who have served with him, including all of his present colleagues.
In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I draw on the SCOTUSsblog Stat Packs to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.
Reversing the numbers, so that degree of disagreement becomes degree of agreement, and focusing on the extent to which other justices agree with Thomas non-unanimous cases, I obtain the following statistics:
The “trend” for Gorsuch would be worrying, except for its brevity. The truly worrying trend is Chief Justice Roberts’s greater inclination to part ways with Thomas since the 2011 term. I am not comforted by the current (2018) term’s first divided opinion. Thomas wrote for a 5-4 majority and Roberts was in the minority with Kagan, Ginsburg, and Sotomayor.
There’s not much to say about the Court’s “liberal” wing, except to note its egregious record, especially in the last three terms.
On the other side, Alito’s steadfastness, marred only by the peculiar 2015 term, is a comfort. I still have high hopes for Gorsuch — and Kavanaugh. If RBG would throw in the towel this year, the Court could still have a conservative majority even if Roberts goes full Kennedy (or worse).
Related post: The Polarized Court