WASHINGTON — 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 Ginsburg and 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. Thomas and Ginsburg have been together in 42 cases in the court’s closest outcomes during 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. Ginsburg and Justice Samuel A. Alito Jr. have been part of five-justice majorities in 17 cases, or about 1.3 times a term since Alito became a justice in 2006. In the same kinds of cases, Justice Sonia M. Sotomayor has paired with Thomas 13 times and with Alito, just 6.
It is safe to say that Ginsburg and 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. Thomas said Ginsburg’s opinion “makes little sense.” Ginsburg wrote that 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.