Justices Ruth Bader Ginsburg and Antonin Scalia share a famous fondness for the opera, but they don't often find themselves on the same side of divided Supreme Court decisions. So it was noteworthy on Tuesday when, along with conservative Justice Clarence Thomas, Ginsburg and Scalia teamed up to file a strongly-worded dissent in the court's decision to reject an appeal in a crack-cocaine sentencing case.
The move to submit a signed dissent, noted first by Reason.com, was rare enough. The Supreme Court denies a vast majority of the petitions it receives, usually without any explanation or dissenting opinions. That's true even in major cases, such as last week's decision not to hear appeals from states whose bans on same-sex marriage were overturned by lower courts.
The fact that three justices submitted a dissent indicates that the decision not to hear an appeal on the case known as Jones v. United States was as close as it gets. While a ruling on a case heard by the court requires a majority of the nine justices, the threshold to hear arguments in the first place, known as granting certiorari, is only four. In other words, the trio of Ginsburg, Scalia and Thomas lost by just one vote in their push to have the Court review the case.