Bench Memos

Linda Greenhouse’s Surprise

Linda Greenhouse is surprised to discover that this Supreme Court term’s decisions challenge the “common impressions” that “Justices Antonin Scalia and Clarence Thomas are joined at the hip and that the majority tilts reflexively in favor of corporations and employers.” She ponders what might account for the “topsy-turvy world” of this term but never contemplates the possibility that the “common impressions” are ill-founded myths (which she, as much as anyone, has worked to propagate).

To be clear: I am not disputing that Scalia and Thomas have often been in agreement over the years. That’s exactly what one would expect given their common jurisprudential outlooks. But the extent of agreement has been routinely exaggerated, and, as Greenhouse’s “joined at the hip” phrase illustrates, the intellectual roots of that agreement have been obscured. (As Jan Crawford shows in Supreme Conflict, from the beginning Thomas’s enemies tried to disparage him by falsely accusing him of “blindly following Scalia.”)

I am also, of course, not disputing that the Supreme Court sometimes rules “in favor of corporations and employers.” But the frequency of such rulings is routinely overstated, and there is no basis for the myth that the “majority tilts reflexively” in that direction.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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