Supreme Court Justices Clarence Thomas and Samuel Alito have been angry for years. Over and over, they watched as conservative justices joined the liberal justices in high-profile decisions. First, a coalition of Republican-appointed justices upheld the right to abortion. Then there was the ruling that preserved the Affordable Care Act. A few years later, the court established a constitutional right to same-sex marriage. Then — when the court’s conservative majority was even stronger — the justices ruled that sexual orientation is covered under employment discrimination law.
In those kinds of cases, all Thomas and Alito could do was write furious dissents that accused their fellow justices of misunderstanding the Constitution and abusing their role as judges. Now, they’re in a very different position. With a conservative supermajority in place on the court, there are three other justices — Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh — who are much more likely to agree with Thomas and Alito than previous Republican-appointed justices were.
As a result, the court’s two most conservative justices are writing majority opinions on issues that they repeatedly used to write dissents for. This term, Alito wrote an opinion declaring that there was no constitutional right to abortion. Thomas went a step further, writing a concurring opinion that said that the court should use the logic of the abortion-rights case to dismantle the right to contraception, consensual same-sex intercourse, and same-sex marriage.
Thomas and Alito would like to revisit more than just that, and their past dissents give us hints at how they might change the country next. Writing a dissenting opinion is a sign of when a justice was particularly unhappy with a given case’s outcome, since each justice isn’t required to write their own dissent — they can (and often do) sign onto another colleague’s dissenting opinion. A FiveThirtyEight analysis of every case Thomas or Alito considered since they joined the court1 found that Alito and Thomas have both dissented a lot, on some issues more than others.
These findings underscore just how far-reaching the conservative bloc’s priorities might be. Both justices, for example, seem eager to cut back significantly on criminal defendants’ rights established by earlier precedents. But that’s not all. Legal experts told us that if Alito and Thomas are helping to set the agenda, an even wider range of rights and precedents could be threatened — including on issues like civil rights, due process and privacy.
Criminal defendants’ rights are already being cut back
Over their years on the court, Thomas and Alito have collectively written more dissents on criminal procedure — cases that involve the rights of people accused of crimes — than any other topic. Using data from the Supreme Court Database, we found that since Alito’s first full term in 2006, Alito wrote 19 percent of the dissents in criminal procedure cases and Thomas wrote 17 percent, together writing 86 dissents out of the 239 dissents written on this issue in total.
And with the court’s conservative supermajority in place, the pair are already helping to reshape the law on this issue. Last term, both Alito and Thomas wrote majority opinions with sweeping consequences for people accused of crimes, making it harder for suspects and criminal defendants to seek recourse if their rights are violated.
In the opinion written by Alito, the court’s conservative majority ruled that if a Miranda warning against self-incrimination isn’t read, suspects don’t have the ability to sue the federal government for violating their constitutional rights. “A violation of Miranda does not necessarily constitute a violation of the Constitution,” Alito wrote. Which means that if someone doesn’t get a Miranda warning, they can’t sue the person who failed to give it to them — substantially undercutting the right against self-incrimination.
This hostility toward criminal defendants’ rights is typical of Alito, according to Neil Siegel, a professor of law and political science at Duke University, who has written about Alito’s record on the Supreme Court. Alito, a former prosecutor himself, tends to see those rights narrowly. “In his worldview, the government always wins and the prisoner always loses,” Siegel said.
Thomas’s opinion, meanwhile, made it more difficult for criminal defendants to challenge their convictions by saying that they had bad legal help. In that case, two Arizona death row inmates argued that they ended up with a death sentence because their defense lawyers had failed to investigate or present evidence that could have exonerated them or resulted in a less severe sentence. Their lawyers had missed deadlines that would allow them to bring up the cases in state court, but hoped that a federal judge could intervene.
Thomas’s ruling was relatively technical, but in practical terms, it makes it much, much harder for other defendants to get convictions overturned on the basis of bad legal assistance, which is connected to the broader right to legal counsel. In her own dissent, Justice Sonia Sotomayor wrote that the decision “will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”
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Leah Litman, a law professor at the University of Michigan, predicted that there will be more cases where the court upholds a right in name, but makes it functionally impossible for suspects or criminal defendants to actually get a remedy when their rights are infringed. That doesn’t mean that longstanding protections for people accused of crimes are safe — Miranda, in particular, has long been a target of the conservative legal movement — but the justices might hollow them out before declaring them dead. “I think the court will make [these rights] impossible to prove or enforce before they outright overrule them,” Litman said.
Other civil rights could be pared back or transformed
Over the years, Alito and Thomas have written many dissents on another topic: civil rights. In total, out of 413 cases on civil rights on which they’ve voted over the years, at least one of them has written dissents on 66 – 16 percent overall – but on close cases,2 that rises to 26 percent (34 out of 129). And if we look at close cases that were decided in a liberal direction, Thomas and Alito wrote dissents in a full 53 percent of them (32 out of 60).
Those dissents include some of the issues that Thomas mentioned in his concurrence in the abortion-rights decision, including the right to same-sex marriage. But it’s a much bigger category than just reproductive or gay rights.
Next term, for instance, Alito and Thomas seem poised to find themselves on the winning side of a civil rights issue they’ve long complained about: affirmative action. In 2016, a divided court upheld the University of Texas’s race-conscious admissions program, saying that it was not a constitutional violation to consider race as one factor among many. When the ruling came out, Alito read his dissent — which Thomas and Roberts joined — from the bench. The majority decision’s opinion, he said, was “remarkably wrong.” The university, in his view, was actually relying on damaging racial stereotypes in its quest for greater diversity, and helped wealthy Black students at the expense of Asian American applicants.
Soon, the court is hearing another case that could have a very different outcome. Earlier this year, the justices decided to hear challenges to race-conscious admissions programs at Harvard University and the University of North Carolina. The Harvard case contends that the university discriminates against Asian American applicants by using admissions criteria designed to effectively create a cap on how many Asian students can be admitted, while the University of North Carolina case revolves around whether the university discriminated against white and Asian applicants.
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Both Harvard and the University of North Carolina argued that their programs are constitutional under current Supreme Court precedents. But Alito and Thomas appear to think those precedents were wrongly established — and the experts we spoke with said that it’s likely that at least three of the other conservatives agree. “Affirmative action in higher education is probably going to fall next year,” said Steve Vladeck, a professor at the University of Texas School of Law.
The fact that an affirmative action case is on the court’s docket for next year — along with several other high-profile voting rights and election administrations cases and a case about whether a website designer who opposes same-sex marriage can post a message on her website saying she won’t do work for gay weddings — signals that many lines of precedent could be at stake. Other conservative victories could be coming — and the outcomes in those cases will likely be shaped by Alito and Thomas’s views, even if they aren’t the decisive votes.
Siegel said that Alito, in particular, will likely push for outcomes that benefit conservatives and the Republican Party. “He’s a conservative, traditionalist, culture warrior,” Siegel said. “With most justices, you’re able to identify cases where they’ve disappointed the party who appointed them — even if there aren’t many.” With Alito, he said, it’s difficult to find the situations where he broke with Republican orthodoxy. “He just never seems to disappoint the Republican Party,” Siegel said. “And now of course he’s writing majority opinions where he used to be in dissent.”