Justices Thomas &Sotomayor: Closer Than You Think?

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By Kimberly Strawbridge Robinson

May 27 — Some odd voting lineups in the U.S. Supreme Court's May decisions have some court watchers scratching their heads.

In particular, Justices Clarence Thomas—often considered one of the court's most conservative justices—and Sonia Sotomayor—frequently thought of as one of the most liberal—have agreed to an unusual degree.

Former Thomas clerk Helgi Walker said she's not surprised at all by the justices' recent vote alignment. Odd combinations like that happen all the time, she said.

She added that in all three recent cases where Thomas and Sotomayor recently aligned, the agreement resulted from the approach taken by the justices—not the desire to reach a particular outcome.

But former clerk to Justice Antonin Scalia, William M. Jay , said the cases involve two areas of the law where Thomas and Sotomayor are more likely to line up: criminal justice and the role of state courts in private civil cases.

Unusual Agreement

Jay, now at Goodwin Procter LLP, Washington, said last term Thomas and Sotomayor “agreed in only one of the Court’s 19 closely divided cases.”

“[I]n fact they disagreed in most of the non-unanimous cases last Term,” Jay said. “But that wasn’t representative.”

So far this term, Thomas and Sotomayor have agreed in 28 of 41 argued cases, or about 68 percent of the time, according to research by Bloomberg BNA.

That's on par with their vote agreement since Sotomayor joined the court in 2009, which ranges from 50 percent to 75 percent.

But in three cases decided in May, Thomas and Sotomayor showed an unusual degree of agreement.

Both dissented in the 5–3 decision regarding the reach of conspiracy law, Ocasio v. United States, 84 U.S.L.W. 4245, 2016 BL 138438 (U.S. May 2, 2016) (84 U.S.L.W. 1605, 5/5/16).

Sotomayor was the only justice to join Thomas's separate opinion concurring in the judgment only in a securities case, Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 84 U.S.L.W. 4275, 2016 BL 154902 (U.S. May 16, 2016) (84 U.S.L.W. 1696, 5/19/16).

Finally, both dissented in another 5–3 decision, Luna Torres v. Lynch, 84 U.S.L.W. 4297, 2016 BL 159651 (U.S. 2016) (84 U.S.L.W. 1733, 5/26/16).

Textual Approach

Walker, now an appellate lawyer at Gibson, Dunn & Crutcher LLP, Washington, said that in each of those cases, Thomas and Sotomayor took a textual—rather than contextual—approach to the case.

She pointed to Luna Torres as an example.

There, the majority held that a state criminal offense counts as an “aggravated felony” for immigration purposes when it has every element of a listed federal crime except the one requiring an interstate connection.

Sotomayor dissented, joined by Thomas and Justice Stephen G. Breyer.

Sotomayor listed the elements of the state and federal crime that matched up and then said: “There is one more element in the federal offense than in the state offense—(5), the interstate or foreign commerce element. Luna thus was not convicted of an offense ‘described in' the federal statute. Case closed.”

That's a very straight-forward, textualist approach to the case, Walker said.

Textualism is something that Thomas has been known for since he took the bench almost 25 years ago, Walker said.

But it's still too early to know if Sotomayor will embrace the textualist approach, as this is only her seventh term on the court, Walker said.

If Sotomayor does follow that approach, expect to see more agreement between these two justices, she said.

Defy Stereotypes

But Jay said the justices' recent agreement involves areas of the law where they “have defied stereotypes by agreeing.”

“One of the most significant has been the role of state courts in private civil cases,” he said.

“Justices Thomas and Sotomayor have been two of the most skeptical Justices in cases where a defendant claims that federal law preempts a state lawsuit,” Jay said.

“Their agreement in Merrill Lynch v. Manning is consistent with that: They both agreed that very few suits should be removed to federal court under the Securities Exchange Act.”

Jay added that in “Justice Thomas’s case, that comes from his belief in federalism.”

“Justice Sotomayor has occasionally struck a similar note,” Jay said.

Criminal justice is another area where Thomas and Sotomayor have agreed, he said.

“Both of them have been swing votes on certain issues of constitutional criminal procedure, especially the Confrontation Clause.”

“There were quite a few cases that pitted Scalia-Thomas-Ginsburg-Sotomayor-Kagan against Roberts-Kennedy-Breyer-Alito,” Jay said.

“Thomas’s commitment to federalism has often led him to side against the government in cases involving the interpretation of federal criminal statutes,” Jay said.

“That makes their agreement in Ocasio not terribly surprising.”

Go Their Own Way

Regardless of their judicial philosophy, Walker noted some other similarities between the seemingly opposite justices.

There is no question that Thomas isn't afraid to “go his own way,” Walker said.

It isn't unusual for Thomas to be the lone dissent in an 8–1 or 7–1 decision, she said.

In fact, he was the lone dissent in two cases in a single day: Green v. Brennan, 84 U.S.L.W. 4325, 2016 BL 163184 (U.S. May 23, 2016) (84 U.S.L.W. 1729, 5/26/16) and Foster v. Chatman, 84 U.S.L.W. 4308, 2016 BL 163232 (U.S. May 23, 2016) (84 U.S.L.W. 1727, 5/26/16).

Again, it's still too early to know if Sotomayor will follow the same path, Walker said. She's had one sole dissent in an argued case this term already, Kansas v. Carr, 84 U.S.L.W. 4037, 2016 BL 14201 (U.S. Jan. 20, 2016) (84 U.S.L.W. 964, 1/21/16)

But Sotomayor is a strong, confident person, Walker said. You can really see that during oral argument, she added.

It wouldn't be a surprise if her strong voice translated into a justice that isn't afraid to go her own way too, Walker said.

Unique Backgrounds

Additionally, Walker noted that Thomas and Sotomayor share a similar background.

Although Thomas grew up in the segregated South and Sotomayor grew up in the Bronx, neither had a privileged background, Walker said.

That's “somewhat unique” on the Supreme Court.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com