
Andrew Leonard's inaugural installment of Salon's “This Week in Crazy” column features Clarence Thomas and the recent Supreme Court decision to lift restrictions on corporate spending on political campaigns. The crazy part was not the decision itself. (That was merely catastrophic.) Nor was it that Thomas formed part of the conservative majority of the court that brought it about. (That was automatic.) It was that Thomas, and Thomas alone, dissented from the only sane part of the ruling, the part that upheld the requirement that these corporate donors at least disclose their identities!
Many of those who have written about this subplot of the tragedy that was Citizens United v. Federal Election Commission have emphasized the fact that Thomas was the lone dissenter on this point. Not even Scalia joined him!
That got me thinking about solo dissent in general. Does it happen often? Do some justices do it more often than others? What does it reveal about the ones who do?
Of the 335 decisions handed down by the court in the past five terms, 26 involved a lone dissenter, usually against the decision as a whole, but sometimes, as in Citizens United, only against some significant part of it. In these 26 cases, Roberts, Breyer, and (surprisingly) Scalia were the dissenters only once each, and Kennedy and Alito never at all. Sotomayer also never appears, which is not surprising, given her short time on the court so far. Souter appears twice, Ginsberg three times, and Stevens, who is widely regarded as the most liberal of the justices, tallies five. Clarence Thomas fills up the rest of the roll. He stood against all eight of his peers thirteen times, as many times as all the rest of them put together!
Does this mean he’s a crazy extremist, with Stevens running a distant second? Not necessarily. There can be many reasons for a justice to stand alone. She might be the only voice of reason in a dysfunctional court, for example. Or he might be a technician seeking to maintain certain important tensions in the mechanism of the law. The only way to tell is to look at the evidence. What were the lone dissenters actually standing for?
A glance at Stevens’ dissents reveals the leftward lean one would expect, but nothing very unbalanced. He tended to fight for the right of allegedly wronged parties to seek legal recourse: to sue a corporation for securities fraud in Tellabs, Inc. v. Makor Issues & Rights, Ltd., or to challenge the fairness of energy contracts in NRG Power Marketing, LLC v. Maine Public Utilities Commission.
In Fernandez-Vargas v. Gonzales, he spoke in the defense of an individual who was being deported due to a new tough law that was enacted after his violation of it.
His most ideologically charged opinion, at least in appearance, was his stance in Scott v. Harris. In this somewhat famous case, the court decided that a fleeing driver in a high speed car chase could not sue the deputy sheriff who ran him off the road, causing him to become paralyzed. At first glance, a dissent from this judgment might seem to be classic evidence for the myth of liberal coddling of criminals, but in fact, Stevens only argued that the facts of the case were sufficiently problematic that a local jury should be allowed to make the call.
Many of Thomas’ solo dissents are similarly ideological but mild.
In Buckeye Check Cashing, Inc. v. Cardegna, Preston v. Ferrer, Gonzalez v. United States, and Lopez v. Gonzales, he argued for states’ rights over federal authority, like a good conservative soldier. His opinions in Dolan v. United States Postal Service, MedImmune, Inc. v. Genentech, Inc., and Meacham v. Knolls Atomic Power Laboratory, were the mirror images of Stevens’ above: he fought to limit victims’ ability to sue, but not outrageously.
In Negusie v. Mukasey, the picture begins to change a bit. Daniel Negusie was an Eritrean whose application for asylum was rejected because he had been a guard who participated in the mistreatment of prisoners. The lower court that rejected his appeal thought it had to ignore his claims that he was forced to do what he did under threat of torture and death, but eight out of the nine Supreme Court justices ruled that such extenuating circumstances could be considered in these cases. Thomas disagreed.
In Northwest Austin Municipal Utility District No. 1 v. Holder, the court upheld the importance of section 5 of the Voters Rights Act, which prohibits local governments from enacting changes in their voting processes without federal approval. The nearly unanimous opinion went out of its way to emphasize the continued importance of this law, which prevents local jurisdictions from enacting new discriminatory practices as quickly as the federal government can outlaw them. Thomas disagreed that section 5 was needed any longer.
He also argued in Rothgery v. Gillespie County, with no one else joining him, that an individual’s right to counsel begins not when he or she is arrested, but only when a formal indictment is made.
Finally, there came the infamous case of Safford Unified School Dist. #1 v. Redding, in which a 13 year-old girl was strip searched because she was suspected of holding illegal drugs in the form of 400mg tablets of ibuprofen. (200mg is the normal over-the-counter strength.) Though the court ruled that the girl could not hold the school officials liable for their search, it asserted that the search itself was unconstitutional. Thomas disagreed with this latter point!
What do we make of all this? Is Clarence Thomas a heroic defender of some lost truth? A meticulous watcher over the subtle details of the law? Or is he simply a nut job? One way to decide is to imagine what the world would be like if he had gotten his way in all of these judgments: You could be arrested and incarcerated, and not have a right to counsel until an actual indictment was made. Big parts of the Voters Rights Act would be declared unconstitutional. Middle school girls could be strip searched on suspicion of carrying extra strength ibuprofen. And corporations could spend billions of dollars to influence the outcome of U.S. elections, as they will now anyway, but in total anonymity!
The verdict: Nut job, in an eight to one decision.


Salon.com
Comments
His wish for anonymity was the ultimate, almost broke my neck from shaking, coup de grace. Holy shit, my country is on acid or something, WTF?
I was going to write a blog about this subject, Googled "Clarence Thomas Solo Dissents" and your post was the first one to come up.
I may still do a satirical post on the subject but your post covered the subject beautifully! Rated.