In a divided Court, many small signs of agreement, respect

Justice Ruth Bader Ginsburg and Justice Clarence Thomas, a liberal icon and a conservative bastion, have balanced political disagreement with a genuine mutual regard. And in the past two 5-4 decisions, they have aligned. 

J. Scott Applewhite/AP/File
The justices of the United States Supreme Court gather for a formal portrait on Nov. 30, 2018.: (first row, l. to r.) Justice Stephen Breyer, Justice Clarence Thomas, Chief Justice John G. Roberts, Justice Ruth Bader Ginsburg, and Justice Samuel Alito Jr.; (second row, l. to r.) Justice Neil Gorsuch, Justice Sonia Sotomayor, Justice Elena Kagan, Justice Brett M. Kavanaugh.

Since Justice Ruth Bader Ginsburg's return in late winter from cancer surgery and broken ribs, she has regularly accepted Justice Clarence Thomas' extended hand to help her down the three steps behind the Supreme Court bench when the gavel falls and court ends for the day.

There's something touching about seeing the 86-year-old liberal icon and the 70-year-old conservative stalwart briefly join hands to exit the courtroom. Most people in the courtroom can't see the justices once they leave the bench, but the seats reserved for reporters offer a good view.

Now Ms. Ginsburg and Mr. Thomas have been on the same side of the last two 5-4 decisions issued by the high court. Is this the start of something new?

Actually, no. Mr. Thomas and Ms. Ginsburg have been together in 42 cases in the court's closest outcomes during Ms. Ginsburg's nearly 26 years as a justice. Those include some favoring criminal defendants, such as a 2009 case limiting the warrantless search of a vehicle following the arrest of its occupant, and last year's ruling enhancing states' ability to collect sales tax from online merchants. The two cases this term are a bit above the average of 1.6 times per term they have agreed in decisions in which there was a bare majority of five justices.

The numbers are courtesy of Adam Feldman, whose Empirical Scotus website runs all kinds of interesting numbers about the court. The Ginsburg-Thomas pairing actually is more common than some of the other court odd couples. Ms. Ginsburg and Justice Samuel Alito have been part of five-justice majorities in 17 cases, or about 1.3 times a term since Mr. Alito became a justice in 2006. In the same kinds of cases, Justice Sonia Sotomayor has paired with Mr. Thomas 13 times and with Mr. Alito, just 6.

It is safe to say that Ms. Ginsburg and Mr. Thomas, the longest-serving justice with nearly 28 years on the bench, are not on the verge of becoming the court's new power duo. Just last week , they sniped at each other in footnotes to opinions involving an Indiana law backed by abortion opponents that regulates the disposal of fetal remains following an abortion. Mr. Thomas said Ms. Ginsburg's opinion "makes little sense." Ms. Ginsburg wrote that Mr. Thomas' footnote "displays more heat than light," and "overlooks many things."

But such is life on the Supreme Court that your bitter opponent in one case is the fifth vote you need to form a majority in another. That's the role Ms. Ginsburg played in Mr. Thomas' opinion Monday that upheld an extra 3½ years in prison for a repeat drug trafficking offender. The other liberal justices were in dissent, along with Justice Neil Gorsuch. In the other case, Mr. Thomas crossed the ideological divide in a rare alignment with the four liberal justices in favor of a consumer's bid to keep a class-action lawsuit in state, and not federal, court.

The justices themselves never tire of telling the public that their disagreements are not personal, even when their pointed opinions call out a colleague by name.

Before the justices break for the summer, the Supreme Court has 27 cases to decide, including whether the Trump administration can add a citizenship question to the 2020 census. If past practice is any guide, the final decisions will be handed down no later than June 27. The court meets again on Monday.

This story was reported by The Associated Press

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