Law: June 2004 Archives

There's been a lot more on Justices Thomas and Scalia voting together, which I blogged about before. Volokh has a list of which pairs of justices vote agree the most in their endorsement of opinions. Scalia and Thomas are seventh in the list. Six other pairs of justices are more likely to agree than those two are. Four of those six pairs are more likely to be considered liberal. Two are conservative-moderate pairs (Rehnquist with O'Connor and Rehnquist with Kennedy). The most likely to agree are Souter and Ginsburg, 12% more likely to agree than Thomas and Scalia.

Will Baude at Crescat Sententia wonders why there's such a persistent myth that Clarence Thomas is a lapdog for Antonin Scalia and never expresses independent thought. Eugene Volokh has wondered about this before and also notices that these recent war on terror prisoner cases show about as strong a disagreement between the two as between any justices. Both wonder why this myth persists. Baude expresses his wonder at it even more strongly:

Usually, when a clearly-wrong belief persists like this one does, there is some sort of memetic explanation-- some reason that the belief is convenient, or that people who do not share it are unlikely to prosper, or some reason that the wrong belief has a particular advantage in replicating itself. But I can't think of any such explanation here.

Well, I can, and I would have thought it obvious.

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