SUPREME COURT NOTEBOOK: Thomas, RBG align in 5-4 rulings
WASHINGTON (AP) — Since Justice Ruth Bader Ginsburg’s return in late winter from cancer surgery and broken ribs , she has regularly accepted Justice Clarence Thomas’ extended hand to help her down the three steps behind the Supreme Court bench when the gavel falls and court ends for the day.
There’s something touching about seeing the 86-year-old liberal icon and the 70-year-old conservative stalwart briefly join hands to exit the courtroom. Most people in the courtroom can’t see the justices once they leave the bench, but the seats reserved for reporters offer a good view.
Now Ginsburg and Thomas have been on the same side of the last two 5-4 decisions issued by the high court. Is this the start of something new?
Actually, no. Thomas and Ginsburg have been together in 42 cases in the court’s closest outcomes during Ginsburg’s nearly 26 years as a justice. Those include some favoring criminal defendants, such as a 2009 case limiting the warrantless search of a vehicle following the arrest of its occupant, and last year’s ruling enhancing states’ ability to collect sales tax from online merchants . The two cases this term are a bit above the average of 1.6 times per term they have agreed in decisions in which there was a bare majority of five justices.
The numbers are courtesy of Adam Feldman, whose Empirical Scotus website runs all kinds of interesting numbers about the court. The Ginsburg-Thomas pairing actually is more common than some of the other court odd couples. Ginsburg and Justice Samuel Alito have been part of five-justice majorities in 17 cases, or about 1.3 times a term since Alito became a justice in 2006. In the same kinds of cases, Justice Sonia Sotomayor has paired with Thomas 13 times and with Alito, just 6.
It is safe to say that Ginsburg and Thomas, the longest-serving justice with nearly 28 years on the bench, are not on the verge of becoming the court’s new power duo. Just last week , they sniped at each other in footnotes to opinions involving an Indiana law backed by abortion opponents that regulates the disposal of fetal remains following an abortion. Thomas said Ginsburg’s opinion “makes little sense.” Ginsburg wrote that Thomas’ footnote “displays more heat than light” and “overlooks many things.”
But such is life on the Supreme Court that your bitter opponent in one case is the fifth vote you need to form a majority in another. That’s the role Ginsburg played in Thomas’ opinion Monday that upheld an extra 3 ½ years in prison for a repeat drug trafficking offender. The other liberal justices were in dissent, along with Justice Neil Gorsuch. In the other case, Thomas crossed the ideological divide in a rare alignment with the four liberal justices in favor of a consumer’s bid to keep a class-action lawsuit in state, and not federal, court.
The justices themselves never tire of telling the public that their disagreements are not personal, even when their pointed opinions call out a colleague by name.
In his best-selling 2007 memoir, “My Grandfather’s Son,” Thomas described the difficult period when his first marriage was breaking up and he was, by his own admission, drinking too much. Thomas recounted a harrowing drive from Washington to Savannah, Georgia, to visit his family in December 1980. Before getting into his car, the 31-year-old Thomas grabbed a six-pack of beer from his refrigerator and chipped the ice off his windshield. Then he headed south, “drinking beer and watching other cars slide off the road and crash into one another,” Thomas wrote.
Much has changed in the nearly 40 years since, including his preferred mode of travel for long-distance driving.
Thomas and his wife, Ginni, take to the road in a 40-foot RV most summers. They hit 23 states last summer, he said Monday in a talk in the courtroom sponsored by the Supreme Court Historical Society.
He explained that his passion for RV-ing comes in part from the constraints of being a justice. “We get insulated from the rest of the world, if not isolated. I like that part of the world, the part we fly over,” Thomas said.
Another change from when he was a younger man, Thomas suggested, is his adherence to traffic regulations. “I don’t speed. I obey the law,” he said.
He offered a practical explanation, the danger of driving too fast while trying to control a 40-foot-long vehicle and, attached to the rear, a car in tow.
Thomas has in the past lamented his loss of anonymity, probably as a result of the Senate hearings in which Anita Hill accused him of sexual harassment, an allegation he strongly denied. But Thomas noted that in last year’s travels, he was recognized a half-dozen times.
“The anonymity is wonderful,” he said Monday.
Before Thomas and the other justices can hit the road, the Supreme Court has 27 cases to decide, including whether the Trump administration can add a citizenship question to the 2020 census. If past practice is any guide, the final decisions will be handed down no later than June 27. The court meets again on Monday.