It’s been a week of strange splits and noteworthy dissents at the U.S. Supreme Court.
In Navarette v. California, Justice Clarence Thomas wrote for a five-justice majority, holding that a traffic stop premised on an anonymous but reliable 911 tip about a swerving driver provided a police officer reasonable suspicion that the driver was intoxicated. So much the worse for the driver in this case, who happened to have thirty pounds of pot in the bed of his truck. Chief Justice Roberts agreed, as did Justices Kennedy, Breyer, and Alito. Justice Antonin Scalia dissented, joined by Justices Ginsburg, Sotomayor and Kagan. The usual yammering about Thomas as Scalia’s lap dog was quiet in this case. In Navarette, they apparently don’t even agree about how booze works: Scalia writes, “Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol.” He then cites to an article on the science of drinking.
In Paroline v. United States, the case involving restitution for child pornography victims, Justice Kennedy authored the majority opinion, joined by Justices Ginsburg, Breyer, Alito, and Kagan. The Chief dissented, along with Scalia and Thomas. Justice Sotomayor dissented separately. While none of the other justices joined her opinion, Sotomayor would have affirmed the Fifth Circuit’s en banc majority, granting the victim Amy full restitution. That majority included some conservative stalwarts (such as my former boss, Edith Jones) who aren’t often on the same side of divisive issues as the Wise Latina.
Justice Sotomayor also dissented in Schuette v. Coalition to Defend Affirmative Action, this term’s high-profile affirmative action case. Justice Ginsburg joined Sotomayor’s spirited (58-page!) dissent. Justice Kennedy, writing for himself, the Chief, and Alito, concluded that the Constitution does not require the Court to strike down Michigan voters’ ban on race-based admissions policies in higher education. Scalia and Thomas concurred only in the judgment. Breyer separately concurred, based on a different rationale. Kagan was recused.
If the Supreme Court this week is any indicator, we often agree on little. Where we do, we sometimes find ourselves sharing the sheets with some strange bedfellows. A week of vociferous dissents and unexpected alliances suits seems strangely appropriate to me this week . . . .