Justice Thomas & the First Amendment: voting record
 

Compiled by Alyssa Work
10.08.07

These tables show Justice Clarence Thomas’ voting record on selected topics. The charts list all the sexual-expression, commercial-speech, compelled-speech and campaign-speech cases in which Justice Thomas participated, beginning with the 1991-92 term, his first on the Supreme Court, through the 2006-07 term.

Justice Antonin Scalia’s voting record in these cases is offered to allow comparisons with Thomas’ votes, as the two justices often vote in agreement. Pluses (+) indicate a vote to uphold a First Amendment claim; minuses (-) show denial of a First Amendment claim.

Sexual-expression cases
Thomas’ vote Case Court’s vote Scalia’s vote
-
Joined Breyer’s majority opinion
City of Littleton v. Z.J. Gifts (2004) (9-0) - -
+
Joined Kennedy’s majority opinion
Ashcroft v. ACLU (2004) (5-4) + -
-
Joined Rehnquist’s majority opinion
United States v. ALA Inc. (2003) (6-3) - -
-
Authored majority opinion
Ashcroft v. ACLU (2002) (8-1) - -
+
Authored a separate concurrence
Ashcroft v. Free Speech Coalition (2002) (6-3) + -
-
Joined O’Connor’s majority opinion
City of Los Angeles v. Alameda Books (2002) (5-4) - -
-
Joined Scalia’s concurrence
City of Erie v. PAP'S A.M. (2000) (7-2) - -
+
Authored a separate concurrence
United States v. Playboy Entertainment Group (2000) (5-4) + -
+
Joined Stevens’ majority opinion
Reno v. ACLU (1997) (9-0) + +
-
Joined Rehnquist’s majority opinion
Alexander v. United States (1993) (5-4) - -



Sexual-expression cases decided by 1 vote
Thomas’ vote Case
+
Joined Kennedy’s majority opinion
Ashcroft v. ACLU (2004)
-
Joined O’Connor’s majority opinion
City of Los Angeles v. Alameda Books (2002)
+
Authored a separate concurrence
United States v. Playboy Entertainment Group (2000)
-
Joined Rehnquist’s majority opinion
Alexander v. United States (1993)



Commercial-speech cases
Thomas’ vote Case Court’s vote Scalia’s vote
+
Joined majority denial of certiorari
Nike v. Kasky (2003) (6-3) + +
+
Authored a separate concurrence
Thompson v. Western States Medical Center (2002) (5-4) + +
+
Authored a separate concurrence
Lorillard Tobacco Co. v. Reilly (2001) (5-4) + +
+
Authored a separate concurrence
United States v. United Foods Inc. (2001) (6-3) + +
+
Authored a separate concurrence
Greater New Orleans Broadcasting Assn. v. U.S. (1999) (9-0) + +
-
Joined Scalia’s separate concurrence
Los Angeles Police Dept. v. United Reported Publishing Corp. (1999) (7-2) - -
+
Authored a separate dissent
Glickman v. Wileman Brothers & Elliott Inc. (1997) (5-4) - +
+
Authored a separate concurrence
44 Liquormart v. Rhode Island (1996) (9-0) + +
-
Joined O’Connor’s majority opinion
Florida Bar v. Went for It Inc. (1995) (5-4) + -
+
Authored the majority opinion
Rubin v. Coors Brewing Co. (1995) (9-0) + +
+
Joined Ginsburg’s majority opinion
Ibanez v. Florida Dept. of Business & Professional Regulation Board (1994) (7-2) + -
-
Joined Rehnquist’s dissent
City of Cincinnati v. Discovery Network (1993) (6-3) + +
+
Joined Kennedy’s majority opinion
Edenfield v. Fane (1993) (8-1) + +
-
Joined White’s majority opinion
United States v. Edge Broadcasting Co. (1993) (7-2) - -


Commercial-speech cases decided by 1 vote
Thomas’ vote Case
+
Authored a separate concurrence
Thompson v. Western States Medical Center (2002)
+
Authored a separate concurrence
Lorillard Tobacco Co. v. Reilly (2001)
+
Authored a separate dissent
Glickman v. Wileman Brothers & Elliott Inc. (1997)
-
Joined O’Connor’s majority opinion
Florida Bar v. Went for It Inc. (1995)


Compelled-speech cases
Thomas’ vote Case Court’s vote Scalia’s vote
-
Joined Roberts’ majority opinion
Rumsfeld v. FAIR (2006) (8-0) - -
-
Authored a separate concurrence
Johanns v. Livestock Marketing Association (2005) (6-3) - -
-
Authored a separate concurrence
Nebraska Cattlemen Inc. v. Livestock Marketing Association (2005) (6-3) - -
-
Joined Scalia’s concurrence
Madigan v. Telemarketing Associates Inc. (2003) (9-0) - -
+
Authored a dissent
FEC v. Colorado Republican Federal Campaign Committee (2001) (5-4) - +
+
Authored a separate concurrence
United States v. United Foods Inc. (2001) (6-3) + +
-
Joined Kennedy’s majority opinion
Board of Regents v. Southworth (2000) (9-0) - -
+
Joined Rehnquist’s majority opinion
Boy Scouts of America v. Dale (2000) (5-4) + +
+
Authored a separate dissent
Glickman v. Wileman Brothers & Elliott Inc. (1997) (5-4) - +
+
Joined Souter’s majority opinion
Hurley v. Irish-American GLIB Association (1995) (9-0) + +
+
Authored a separate concurrence
McIntyre v. Ohio Elections Commission (1995) (7-2) + -


Compelled-speech cases decided by 1 vote
Thomas’ vote Case
+
Authored a dissent
FEC v. Colorado Republican Federal Campaign Committee (2001)
+
Joined Rehnquist’s majority opinion
Boy Scouts of America v. Dale (2000)
+
Authored a separate dissent
Glickman v. Wileman Brothers & Elliott Inc. (1997)


Campaign-speech cases
Thomas’ vote Case Court’s vote Scalia’s vote
+
Authored a separate concurrence
Randall v. Sorrell (2006) (6-3) + +
+
Authored a separate concurrence
Sorrell v. Randall (2006) (6-3) + +
+
Authored a separate concurrence
Vermont Republican State Committee et al. v. Sorrell (2006) (6-3) + +
+
Authored a dissent
McConnell v. Federal Election Commission (2003) (5-4) - +
+
Authored a dissent
Federal Election Commission v. Beaumont (2003) (7-2) - +
+
Joined Scalia’s majority opinion
Republican Party of Minnesota v. White (2002) (5-4) + +
+
Authored a dissent
FEC v. Colorado Republican Federal Campaign Committee (2001) (5-4) - +
+
Authored a dissent
Nixon v. Shrink Missouri Government PAC (2000) (6-3) - +
+
Authored a concurrence
Colorado Republican Federal Campaign Committee v. FEC (1996) (7-2) + +
-
Joined White’s majority opinion
Burdick v. Takushi (1992) (6-3) - -


Campaign-speech cases decided by 1 vote
Thomas’ vote Case
+
Authored a dissent
McConnell v. Federal Election Commission (2003)
+
Joined Scalia’s majority opinion
Republican Party of Minnesota v. White (2002)
+
Authored a dissent
FEC v. Colorado Republican Federal Campaign Committee (2001)

Alyssa Work is an intern at the First Amendment Center.