An Unlikely Trio Files a Rare Supreme Court Protest

Liberal Justice Ruth Bader Ginsburg joins with conservatives Antonin Scalia and Clarence Thomas to urge the court to take up a drug-sentencing case.

Pablo Martinez Monsivais/AP

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, 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.

The three petitioners were convicted by jury of dealing very small amounts of crack cocaine and acquitted on a charge of conspiracy to distribute drugs. But the sentencing judge essentially ignored the latter acquittal and imposed a prison term that, according to the petitioners, exceeded the guidelines for the dealing conviction alone.

"If so, their constitutional rights were violated," Scalia wrote in the dissent that Ginsburg and Thomas joined. His reasoning was that because of the Sixth Amendment's explicit right to a trial "by an impartial jury," a judge cannot substitute his judgment for one already made by a jury on a finding of fact.

"It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge."

Why did the justices get so worked up about this case in particular? In essence, this was a last straw. Scalia wrote that the Supreme Court had declined to hear similar cases too many times previously. The lower courts, he wrote, "have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial fact-finding."

"This has gone on long enough," Scalia wrote.

Scalia, Ginsburg, and Thomas have served together on the Court for more than 20 years, and this is, of course, not the first time they have agreed on a case. As Salon's Jillian Rayfield noted last year, Scalia joined with the liberal justices on a litany of Fourth Amendment cases. But given the passion behind Scalia's dissent, it's too bad, at least for court-watchers, that the trio lost out on Tuesday. The argument would have been a doozy.