Sitting in the courtroom the last two days, I was reminded of how profoundly the Court is split 5-4, conservatives-liberals, on cases that really matter. The divide was evident during oral arguments in the Arizona campaign finance dispute Monday and in the gigantic Wal-Mart job-discrimination class action fight Tuesday. And one of most compelling moments along these lines came Tuesday morning when Justice Ruth Bader Ginsburg read aloud her dissenting opinion from a decision in which the five-justice conservative majority ruled that a former Louisiana Death Row could not sue prosecutors who had failed to turn over blood evidence that could have shown his innocence.
A professor at Gettysburg College last week said she had heard that the Justice Scalia had never hired a single female law clerk. On several radio shows, I’ve been asked about Scalia and Opus Dei. Then there’s the assertion I hear constantly that Justices Scalia and Clarence Thomas vote in lockstep.
On many controversies (duck-hunting with Dick Cheney, for example), Justice Scalia is guilty as charged. But not on those above:
1. Justice Scalia has, in fact, hired several women clerks over the years, some of whom have gone on to prominent positions in academia, such as Joan Larsen at the University of Michigan. It is true, however, that clerks for a majority of the justices, including Scalia, have been overwhelmingly male (and white) through the years.
Justice Clarence Thomas has not spoken from the bench in nearly four years, and his silence regularly leads to questions from the public. When I’m asked, as happened twice last week, I usually repeat some of the reasons Thomas has given, including (as he told C-SPAN in 2009) he would rather let the lawyers talk on and explain their cases. Then I add that in interviews I’ve had with Thomas he has been unusually candid in his assessments of colleagues and open about his views. He provided some of the more vivid descriptions of Justice Scalia and Justice O’Connor, and he offered impressions of the confirmation process for Sonia Sotomayor last summer.