Traitors to the Cause

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.

6-3 Betrayals


Justice Betrayals (OT06-present) Per Term Cases
Roberts 3 0.60 Roper (OT06), Yeager (08), Graham (09),
Scalia - 0.00 -
Thomas 1 0.20 Wyeth (08)
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)
Alito 1 0.20 Gomez-Perez* (07)
Sotomayor 1 Sorrell (10)
Kagan - 0.00 -
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.

5-4 Betrayals

Justice Betrayals Per Term Cases
Roberts - 0.00
Scalia 2 0.40 Spears (OT08), Cuomo* (08)
Thomas 1 0.20 Atlantic Sounding* (08)
Ginsburg 1 0.20 Ali (OT07)
Breyer - 0.00
Alito - 0.00
Sotomayor - 0.00
Kagan - 0.00
Souter - 0.00
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

Justice Betrayals Per Term
Roberts 3 0.60
Scalia 2 0.40
Thomas 2 0.40
Ginsburg 3 0.60
Breyer 11 2.20
Alito 1 0.20
Sotomayor 1 0.50
Kagan - 0.00
Souter 1 0.33
Stevens 5 1.25

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.

Temporary Hiatus

Today begins my hiatus from blogging due to my role as a summer intern for a judge on the Court of Appeals for the First Circuit. Don’t worry though, I’ll spend the summer fixing some background stuff on DailyWrit and I’m certain that the website will be back, better than ever, in mid-August. Additionally, I hope the time off will give me some room to read briefs and catch up on the pile court-related reading that has been stacking up on my desk over the past year.

Have a fantastic summer!

The Court’s hearing list for this month completes the list of attorneys who will argue before the Supreme Court during October Term 2010. I’ve updated my long-running Advocate Scorecard to reflect arguments from the current term so that the chart now reflects 11 terms.

As always, I have included every advocate who has argued more than 5 times during the relevant time period. I’ve included a few extra advocates who are well-known but have argued fewer than five times. If I have missed anyone, please send me an email and I will add them to the list immediately.

The following PDF contains one long sheet that is ideal for scrolling on your computer. You may, however, have trouble printing it.

You can also get the chart in a printer-friendly format here.

I’ve created a little chart that shows opinions released as a percentage of total opinions for a given term. For the current term, I’ve used a hypothetical total of 80, although that number is likely to rise before the end of June.

The Court has released 41% of the opinions expected for OT10, a number that is in line with recent terms. I wish there was more scandalous news to report here, but the Court seems to be on a decent pace for opinions this year.

  • As a general matter, the Justices that tend to carry the greatest ideological authority on the Supreme Court should be the ones authoring the greatest number of 5-4 opinions. Drafting those opinions shows that the senior justice in the majority either trusts the author to hold a majority or believes the author may only remain on that side if he or she writes the opinion. That begs the question: which Justice has written the greatest number of 5-4 majority opinions?

    Average majority opinion authorship in 5-4 cases per term (OT 1996-Present)

    Kennedy 3.50
    Rehnquist 2.89
    O’Connor 2.50
    Scalia 2.36
    Alito 2.0
    Stevens 1.93
    Thomas 1.93
    Roberts 1.80
    Souter 1.54
    Breyer 1.50
    Ginsburg 0.79
    Sotomayor 0.0
    Kagan 0.0

    The liberal Justices’ low authorship rates are almost certainly due to their relatively low number of 5-4 victories over the past 15 years. Here is how the breakdown of total authorship looks by ideology:

    Conservative author 105
    Swing author 74
    Liberal author 79
    Total 258

    Conservative Justices are Rehnquist, Roberts, Scalia, Thomas, Alito.
    Swing Justices are O’Connor and Kennedy.
    Liberal Justices are Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan.

    However, not all 5-4 decisions split along traditional ideological lines. During that same time period, only about 70% of 5-4 decisions were divided along the traditionally easy-to-categorize ideological camps. The liberal Justices can’t blame all of their failure on swing voters, however, because 35% of ideologically divided cases still fell in their favor while 65% fell for the conservative Justices.

    In order to adjust overall victories against the number of opinions authored, I also looked at how often a Justice would write the majority opinion as a percentage of their votes in the majority. For these numbers I only looked at OT 96-08, due to the absence of this data in SCOTUSblog’s OT 09 stat pack (please ignore the fact that the absence of that information is at least partially my fault).

    Opinion authorship as a percentage of total votes in the majority (5-4 decisions, OT 1996-2008)

    Justice Percentage Author Votes in Majority
    Stevens 25.2% 26 103
    Kennedy 25.1% 47 187
    Rehnquist 23.4% 26 111
    Scalia 20.0% 31 155
    Breyer 19.6% 20 102
    Souter 18.5% 10 108
    O’Connor 18.1% 25 138
    Roberts 16.7% 7 42
    Thomas 16.0% 26 162
    Alito 14.6% 6 41
    Ginsburg 9.9% 10 101

    Remember, in the absence of any political forces, each Justice would write the opinion in exactly 20% of the 5-4 cases where he or she was in the majority. A high ratio of majority opinions to votes in the majority could signal a Justice’s relative ideological strength. Justice Steven’s high opinion authorship ratio could be indicative of his role as the senior justice in any liberal 5-4 decision and his willingness to assign the opinion to himself in order to strategically retain the majority.

    The two most obvious ways for a senior justice to assign the majority opinion in a tight case would be to either (1) assign the opinion to the swing justice or (2) assign the opinion to himself or herself in order to keep a majority. The fact that Justice Stevens probably presided over more tenuous 5-4 votes could explain his willingness to take one of the two obvious paths as opposed to the possibly less common route of assigning the opinion to another of the three justices in the majority.

    Here are some of the best individual “performances” for a given term:

    Justice Term Percentage Author Votes in Majority
    Breyer 1999 75% 3 4
    Stevens 2006 57% 4 7
    Scalia 2005 50% 4 8
    Kennedy 2007 50% 4 8

    Bear in mind that some of these ratios may be SLIGHTLY off because majority votes are counted to include per curiam opinions but, obviously, no individual justice signed that opinion. I believe there were only 6 per curiam 5-4 decisions that were counted during the relevant period out of the 250 total 5-4 opinions counted.

    When he was nominated to the Supreme Court, Chief Justice Roberts mentioned that one of his main objectives as chief justice would be to create more consensus on the Court and to forge a greater number of unanimous decisions. Lets see how successful he’s been after five years.

    I considered October Terms 1995 – 2009. That includes ten terms under Chief Justice Rehnquist (OT95-OT04) and five terms under Chief Justice Roberts (OT05-OT09). I’ve excluded OT10 because the court tends to release unanimous opinions frequently in the beginning of the term and more divided opinions towards the end.

    9-0 8-1 7-2 6-3 5-4
    OT95-04 46% 7% 13% 13% 21%
    OT05-09 41% 8% 17% 12% 22%

    It doesn’t look like there has been much of a change, but there has been quite a bit of volatility during the Roberts Court. During OT05, for example, the Court split 5-4 in only 12% of cases but in the next term, OT06, the justices split 5-4 in a staggering 33% of cases.

    Since OT05, the Court has split 5-4 in 12%, 33%, 17%, 29%, and 18% of cases, respectively. During the current term, there have been no 5-4 decisions and 68% (19 cases) have been unanimous. As I mentioned earlier, however, there will be significant deviation to the mean as the Court releases the most difficult decisions of the term.

    *All of this data comes from SCOTUSblog stat packs.

    I’ve taken a look at the number of opinion days in a given week from OT06 to OT10. In other words, I’ve taken a look at the number of times the Court has released opinions on one day during the week, on two days during the week, or on three (presumably consecutive) days during the week.

    Term one day two days three days
    OT06 16 6 0
    OT07 13 13 0
    OT08 11 14 0
    OT09 11 16 2
    OT10 6 2 0

    Both instances of a three-opinion-day week, January 10-12, 2010 and February 21-23, 2010, featured summary reversals on Monday and signed opinions on Tuesday and Thursday. I’ve also counted the total number of opinion days during a given term:

    Term opinion days
    OT06 29
    OT07 31
    OT08 32
    OT09 35
    OT10 8

    For the record, the last stage of an opinion leads it through the reporter’s office and the Court likely doesn’t control the specific release of opinions. The main exception to that rule is the Court’s propensity to holding particularly derisive opinions until the end of the term.

    I’m still not sure why opinions are sometimes released on consecutive days, but my guess is that it has something to do with the flow of opinions after they leave individual chambers and enter the uniform editing process.

    An article in today’s Cincinati Enquirer highlights the Sixth Circuit’s current 15-case losing streak in the Supreme Court. Circuits regularly get reversed (the Court reverses in around 75% of cases) so I wanted to find out if a 15-case streak is especially notable. I decided to take a look at reversal rates from other circuits over the past few years.

    I’m not sure why I got a different number (0-14) for the Sixth Circuit. I also created the same chart but sorted the circuits based on reversal rate 2008-present.

    As it turns out, the Sixth Circuit’s streak is unusual but not particularly shocking. That shouldn’t surprise any of you.

    Update: Jonathan Adler takes a closer look at the Sixth Circuit’s reversal rate at the Volokh Conspiracy (here).

    Michael Dreeben, a Deputy Solicitor General, spent the last semester on leave to teach at Duke University Law School. During his time there, he recorded a nearly hour-long interview that touches on a variety of fascinating topics related to appellate law and Supreme Court litigation.

    I really can’t loft enough praise on Dreeben. He’s argued 77 cases in the Supreme Court and is almost certainly one of the most well-respected Supreme Court litigators currently arguing before the Court. If you’ve been following the this website for a while, you’ll know that his name invariably comes up in any discussion of the top litigators during any term. Check out the interview below:

    (via Volokh Conspiracy)

    A commentator on my last conferencing post picked up on an important part of the distribution question that I had intentionally omitted. How does the number of conferences effect the chances of a petition eventually being granted?

    I looked at 550 cases docketed on the paid docket from July 2009 – June 2010 (in other words, cases docketed 09-1 through 09-1580). My first run through was 150 cases, then another 150, and I’ve managed to finish another 250. I don’t think I’ll realistically be able to do more cases for a while so I’ve decided to publish these in a semi-complete state. The numbers are interesting and I’m reasonably satisfied with a 34% sample size from a total pool of 1,580 cases. You can click on the link below to see the charts.

    The big takeaway is the impact of reconferencing on grant. As you can see from the chart below, there is a pretty strong correlation between increasing the number of conferences and likelihood of grant.

    While I was at it, I wanted to take a look at the impact of amicus briefs on cert.

    Then I put the two charts together!!!

    The trends that I saw were definitely the ones that I expected. The likelihood of a grant increases pretty dramatically with a reconference or with an amicus brief.

    Random Posts

    Enter your email address to subscribe to this blog and receive notifications of new posts by email.