Justices Scalia and Thomas have rare disagreement

It has been reported that from 1994 to 2004, United States Supreme Court Justices Antonin Scalia and Clarence Thomas voted the same way 87.4% of the time, the highest percentage on the Court. In Sykes v. United States, No. 09-11311, decided June 9, 2011, these two justices showed one of their rare disagreements.

In Sykes, the Court addressed whether a prior conviction for "felony vehicle flight" met the criteria for a prior "violent felony" under the Armed Career Criminal Act (18 USC 924(c)), and therefore could be a basis for a 15 year mandatory minimum offense. The Supremes held that it did, by a vote of 6-3.

Concurring in the result, Justice Thomas first rejected majority's complex test for determining a proper prior "violent felony" under the Armed Career Criminal Act. Justice Thomas next argued that in an ordinary case, the proper question was whether the the underlying conviction involved conduct that presented a serious potential risk of physical injury to another. In this case, Thomas felt it did.

Dissenting, Justice Scalia recited the series of recent cases the Court has decided trying to determine what prior convictions satisfy the ACCA, and reasoned, "we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home." Believing this statute to be unconstitutionally vague, Scalia noted, "Of course . . . repetition of constitutional error does not produce constitutional truth." That is a quote that will likely be cited in appellant briefs for the next century!