Clarence Thomas, Facebook Justice

By Steve Klepper (Twitter: @MDAppeal)

On the occasion of Wall Street discovering that Facebook is no longer cool,[1] and on the occasion of the Supreme Court denying certiorari in the Facebook privacy class-action, I decided finally to offer my thesis that Justice Clarence Thomas is a justice for the Facebook era.

Virtually nothing is certain regarding the legislative prayer case, Town of Greece v. Galloway, being argued today before the Supreme Court. But I see one safe bet: Justice Thomas will write a separate opinion expressing his view that the Establishment Clause binds only the Federal Government, not the states. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 678-79 (2002) (Thomas, J., concurring).

Many casual observers of the Court conclude, because Justice Thomas goes years on end without asking questions at oral argument, that he is disengaged from the Court’s business, or that he simply votes with Justice Antonin Scalia. Statistically speaking, however, either conclusion is dead wrong.

Reviewing SCOTUSblog’s statistics for the Supreme Court’s October 2012 Term, two relevant details jump out. First, Justices Scalia and Thomas voted together 86% of the time. That number is nowhere near as high as the 96% vote alignment between Justices Ruth Bader Ginsburg and Elena Kagan—neither of whom is accused of lacking intellectual independence. Second, Justice Thomas “issued more opinions this Term than any of his colleagues, twenty-five. He authored eight majority opinions, … eleven concurring opinions, and six dissents. This is the third time that Justice Thomas has led his colleagues in this category since [SCOTUSblog] began collecting opinion statistics for the Court[.]”

SCOTUSblog does not track the frequency with which justices write “solo” opinions—that is, dissents or concurrences where a justice speaks for himself or herself only. Out of 75 cases argued during the October 2012 term, I count thirteen solo opinions by Justice Thomas,[2] plus two dissents that were partly solo (i.e., other justices joined only portions of the opinion).[3] In 20% of cases, therefore, Justice Thomas expressed views that no other justice shared.

If this were a law review article, I’d need to track this pattern over a span of years and compare his solo-opinion rate to other justices. Since this a blog post, I’ll just provide my anecdotal view, formed from reading many Supreme Court opinions over the years: Justice Thomas is far more likely than any of his colleagues to write solo opinions.

In fact, I suspect that the only justice ever to rival his raw number of solo opinions would be Justice Felix Frankfurter. The latter justice was so dedicated to expressing his separate views that in Cooper v. Aaron, 358 U.S. 1 (1958), the only majority opinion ever to list all nine sitting justices as its co-authors, Justice Frankfurter still authored a separate concurring opinion. Even so, the Supreme Court’s docket has shrunk so dramatically since Frankfurter left the Court in 1962 that I suspect Justice Thomas writes solo opinions in a greater percentage of cases than did Frankfurter or any other justice ever to sit on the Court.

Justice Thomas is a polarizing figure. Detractors (if they acknowledge his large body of work) view his solo-opinion rate as a sign of extremism. His admirers view him as among the most innovative justices in recent memory.

Either way, his solo-opinion rate provides an unusually clear window into his jurisprudence. His energetic iconoclasm means that, even in the two-thirds of cases where Justice Thomas writes no opinion at all, his act of silently signing onto another justice’s opinion is a reasonable indicator that he wholeheartedly endorses that opinion’s reasoning. He does not trade votes, as some justices (like Justice William Brennan) unapologetically have done. Nor does it appear that he ever reads another’s opinion, views its rationale as a good enough for government work, and signs it with a shrug.

For those of us on Facebook—which is now the place for the 30-and-older set to share pictures of children and grandchildren—Justice Thomas fits within a familiar user mold. If each majority opinion or lead dissent were a Facebook post, a justice could sign onto that opinion simply by clicking “Like,” or the justice could write a separate opinion (agreeing or disagreeing) by commenting on the post. Justice Thomas is like the real-world friend who may not say much in offline conversations, but who on Facebook reveals extremely strong opinions on just about every topic. Not content merely to “Like” another’s post, Justice Thomas constantly comments on other’s posts.

Had Facebook existed during Justice Frankfurter’s 23 years on the Court, he would have been a poor candidate for the title “Facebook Justice.” His fellow justices would have un-friended him. In his time on the Court, Frankfurter burned bridges with his almost all of his colleagues.[4] By contrast, as Nina Totenberg reports,“within the walls of the Supreme Court, [Thomas is] the most well-liked justice. He knows the janitors, cafeteria workers, everyone. He knows their names, the names of their family members, where they’re in school, and he is viewed by the law clerks of all the justices as the most accessible of the court’s members.”

By maintaining strong friendships with his colleagues, even as he regularly declares how he would have decided cases differently, Justice Thomas has earned the title “Facebook Justice.”

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• Justice Clarence Thomas Breaks His Silence from the Bench (legaltimes.typepad.com)