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What opinion assignment reveals about Justice Thomas

Anyone who follows the Supreme Court even casually knows that Justice Clarence Thomas is reliably conservative. (I really need the “Match Game” studio audience to shout in unison, “How conservative is he?”) Numerous estimators lend quantitative empirical support to this claim. But for those who develop migraines from too much exposure to math, perhaps the most telling indicator of Thomas’s ideological position appeared briefly in Adam Liptak’s article in Friday’s New York Times that received more attention for its claim that Thomas’s majority opinions “contain language from briefs submitted to the court at unusually high rates.” Liptak writes:

The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.

Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording, including quotations from statutes and earlier decisions, is particularly common.

If this explanation is accurate, the takeaway is that on the most conservative post-New Deal Supreme Court, and perhaps the most conservative Court of the past 100 years, Thomas can’t be assigned any majority opinion of ideological consequence because his views are too extreme. This account does not mean that Thomas has lacked any influence on the Court; his concurring opinions on subjects like the Second Amendment have sometimes persuaded fellow conservatives to move toward his position. But individual justices make their own decisions about whether to write concurring or dissenting opinions. Majority opinions, in contrast, are usually not self-assigned, and patterns of opinion assignment can reveal much about how justices are perceived by their peers. The inferences drawn from Thomas’s assignments offer a compelling qualitative complement to the statistical estimates of his ideology; indeed, they suggest that Thomas is more of an ideological outlier than the quantitative estimates would indicate.

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