The Myth of Giving Unanimous Support to a New Justice’s First Opinion

It’s good to see Mike Sacks — of “First One @ One Firstfame — back on a full-time Supreme Court beat.  But I’m less happy to see him perpetuate a bit of a myth: namely, that Supreme Court justices traditionally line up unanimously behind each new Justice’s debut opinion, and that Justices Thomas & Scalia breached that rule for the debuts of their new liberal colleagues, Justices Sotomayor and Kagan.

Here’s Sacks’s account:

It’s the Court’s custom for the justices all to line up behind a new justice’s debut decision.Thomas ignored that custom in 2009 when he issued a separate concurrence to Justice Sonia Sotomayor’s first opinion — although he didn’t go so far as to dissent, which Justice Antonin Scalia did when Justice Elena Kagan first wrote for the Court.

Actually, the tradition isn’t unanimity — it’s to try to achieve unanimity.  John Elwood has summed this up nicely at the Volokh Conspiracy a couple times.  And it’s not as though Democratic appointees are the only ones to have received non-unanimous treatment: as Elwood puts it, “before anyone suggests that this is a conspiracy against democratic appointees, the same was true of then-Justice Rehnquist, Justice Blackmun, and (I think) Justice Powell.  I got too lazy to do any further research after that.”