The Associated Press gives us good news about Justice Neil Gorsuch’s tenure on the Supreme Court so far, but can’t resist smearing Justice Clarence Thomas along the way. First the good news:
To see where Justice Neil Gorsuch might fit on the Supreme Court, watch the company he keeps.
Gorsuch has already paired up four times with Justice Clarence Thomas — the court’s most conservative member — in separate opinions that dissent from or take issue with the court’s majority rulings.
While the sample size is small, the results show Gorsuch’s commitment to follow the strict text of the law and a willingness to join Thomas in pushing the envelope further than the court’s other conservatives.
The early trend of Gorsuch and Thomas acting together has pleased those who hoped Gorsuch would continue Scalia’s legacy and be another intellectual beacon for conservatives.
That’s great. Let’s hope the trend continues. Now the smear:
Thomas, appointed to the court in 1991, takes pride in his many dissents — often alone — insisting that the justices follow the original meaning of the Constitution even when that means overturning established case law. His absolutist stance has earned praise from conservative supporters. But critics point out that he rarely writes major opinions for the court because his views rarely align with the majority.
The AP’s claim–presented as a statement of fact–that Justice Thomas’s “views rarely align with the majority” is ridiculous. Most Supreme Court cases are decided unanimously, so that assertion would be false as to any justice. In the 2016 term, Thomas voted with the majority in 51 out of 64 cases.
As for the claim that Thomas “rarely writes major opinions,” I suppose it depends on what the AP considers major. The justices tend to write about equal numbers of majority decisions. In the 2016 term, Thomas wrote six majority decisions, while Kennedy, Roberts, Alito, Sotomayor and Kagan wrote seven, and Ginsburg and Breyer wrote eight.
What does stand out about Justice Thomas is that he writes a lot of opinions. More than any other justice, he is committed to developing a coherent jurisprudential legacy, and he works tirelessly in both concurring and dissenting opinions to set out his views on the governing principles of constitutional and federal law. In last year’s term, Thomas authored a total of 28 opinions–six majority, twelve concurring, two concurring and dissenting, and eight dissents.
Perhaps the AP is faulting Thomas for being both principled and hard-working. No other justice wrote more than 18 opinions–that was Justice Alito–and Elena Kagan wrote only 8.
All of which is to say, if Justice Gorsuch really does follow in Justice Thomas’s footsteps, hallelujah.