The Supreme Court released four divided opinions today including a very interesting case rejecting an inmate’s right to test the DNA used to convict him more than 15 years ago.

Justice Thomas was the author of another 5-4 decision in Gross v. FBL Financial Services. For some reason, I had always assumed that he filed a slightly below average number of 5-4 opinions every year. This is his second of OT08, he filed one last year, and two the year before. From OT06 to now, there have been a total of 37 5-4 opinions and 13 of those were written by Justice Kennedy (35%).

Amongst the other Justices then, writing 5 of the remaining 24 isn’t too bad. That number is skewed upwards because the ‘conservative’ judges have been writing so many more majority than their liberal counterparts. In fact, in OT06, there were 21 5-4 decisions and 6 fell with the normal ‘liberal’ justices. Justice Stevens wrote four of those majorities and Justices Kennedy and Breyer each wrote one.

In OT06, he was the third most prolific writer (including concurring opinions and dissents) but that has a lot to do with the slew of one- and two-page concurring and dissenting opinions he writes.

The Court now has 10 opinions remaining. They will sit again on Monday to announce more opinions.


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