6-3 decisions are, statistically speaking, the least common vote split. Frequently, those cases split along the ideological lines that are so familiar from 5-4 decisions, except one Justice breaks rank from their ideological compatriots in dissent and joins the dark side – the majority opinion. Going down with the ship is a classic sign of devotion to a cause and, in those rare instances where a Justice breaks ranks from his or her losing colleagues, we are often reminded that Justices cannot be easily categorized into liberal and conservative categories
I’ve taken a look at the most common traitors from OT06 through OT10. An asterisk beside the case name means that the traitorous Justice added insult to injury by also writing the opinion for the Court.
|Justice||Betrayals (OT06-present)||Per Term||Cases|
|Roberts||3||0.60||Roper (OT06), Yeager (08), Graham (09),|
|Ginsburg||2||0.40||Ysura (08), Renico (09)|
|Breyer||11||2.20||Rodriquez (07), Engquist (07), Winter (08), Hedgpeth (08), Waddington (08), Carcieri (08), Entergy (08), Shinseki* (08), Coeur Alaska (08), Kawasaki (09), McIntyre (10)|
|Souter||1||0.33||Exxon Shipping* (07)|
|Stevens||3||0.75||Medellin (07), Crawford* (07), Humanitarian Law Project (09)|
Finding a Justice’s betrayal rate might be an interesting way to measure of ideology. For instance, a Justice that frequently breaks rank from his ideological kin might be considered less ideologically ‘pure’ than a Justice who always dissents against the opposing side.
A naturally extension of this analysis is the frequency with which a Justice breaks rank from his or her side in 5-4 cases. Although the Court often splits 5-4 with the ideological camps on each side and Justice Kennedy picking the winner, betrayals periodically occur where a Justice leaves the ‘winning’ side (the side that Justice Kennedy chose), and joins his common enemy in the majority. One example from a few years ago is Cuomo v. Clearinghouse Association. There, the Court split as follows:
Majority: Justices Scalia, Stevens, Ginsburg, Souter, Breyer
Dissent:: The Chief Justice and Justices Kennedy, Thomas, and Alito
For the sake of scandalous reporting, I’ll call Justice Scalia the “traitor” here. Had he not broken ranks with his ‘conservative’ colleagues, they would have won the day. Lets take a look at the 5-4 betrayals from OT06-OT10.
|Scalia||2||0.40||Spears (OT08), Cuomo* (08)|
|Thomas||1||0.20||Atlantic Sounding* (08)|
|Stevens||2||0.50||Irizarry* (07), New Process Steel* (09)|
If you combine the two charts, you can get an interesting picture of how often a Justice breaks from the norm in contentious cases.
Total 5-4 and 6-3 betrayals
No surprises here. Justice Breyer is often known for having idiosyncratic views, and his propensity for breaking rank from the liberal Justices reflects those views. That said, I didn’t expect him to break from the liberal Justices so often.
Update: As correctly noted by Mike Sachs, Chief Justice Roberts’ most significant betrayal to date was in United States v. Comstock. There, the Chief Justice provided the crucial fifth vote for the liberal Justice’s opinion, significantly expanding the Necessary and Proper clause beyond its traditional boundaries. I didn’t count it as a 5-4 betrayal, however, because the conservative Justices were divided within their own ranks – Justice Alito voted with the majority but did not join the majority opinion and Justice Kennedy also concurred in the judgment. Therefore, the case should be called a 7-2 and, although the Chief Justice did commit a noteworthy betrayal by giving the liberal justices a majority opinion instead of leaving them with a plurality, he did not commit a 6-3 or 5-4 betrayal.