Examples of unusual divides on the Supreme Court (user search)
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  Examples of unusual divides on the Supreme Court (search mode)
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Author Topic: Examples of unusual divides on the Supreme Court  (Read 2982 times)
Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
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« on: February 04, 2017, 12:36:48 PM »

National Federation of Independent Business v. Sebelius famously had Roberts joining the liberals as the swing vote instead of Kennedy.

City of Boerne v. Flores was a case from the late nineties dealing with the original, federal RFRA where Kennedy wrote the decision for a majority also including Rehnquist, Stevens, Thomas, Ginsburg, and Scalia; O'Connor, Souter, and Breyer dissented.
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Okay, maybe Mike Johnson is a competent parliamentarian.
Nathan
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« Reply #1 on: February 05, 2017, 03:15:32 PM »

Entertainment Merchants Assn. v. Brown involves free speech as applied to bans on selling video games to minors. Both Clarence Thomas and Stephen Breyer dissented from the majority opinion overturning the ban. Thomas did so because children didn't have rights in the 1600s and Breyer did so because only speech he thinks is valuable is speech.

I'm firmly on the liberal side of the spectrum, but I think Scalia's majority opinion in Brown v. EMA is one of the absolute best. The Alito/Roberts concurrence was barely on the correct side in that opinion.

Kyllo v. United States strikes me as a rather unusual divide during the Rehnquist Court. The majority (Scalia; with Souter, Thomas, Ginsburg, and Breyer) ruled that thermal imaging constitutes a Fourth Amendment search over the dissent (Stevens; with Rehnquist, O'Connor, and Kennedy).

I can't think of a lot off hand, but there are a number of cases I can recall where Scalia and/or Thomas jumped to the so-called liberal side while Breyer and/or Kennedy would be on the so-called conservative side (the former would generally win). Basically, where Justice Scalia would rule for criminal defendants with the majority of the liberals (and maybe Justice Thomas), Justice Breyer could often vote the other way. Unfortunately, if Trump gets his way, we're likely to get someone that's reflexively pro-police and pro-executive. Scalia may have been very conservative, but he wasn't a slave to right-wing authoritarian ideology.

Gorsuch actually has a reputation for being relatively anti-executive. We'll see if that holds up.
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