Supreme Court Statistics
Some interesting statistics on the now completed Supreme Court term from the folks at SCOTUSblog:
One set of numbers jumps out at me dramatically: the 5-4 alignments. This term will end with roughly 1/4 of the cases decided 5-4, which is about average. Almost without exception, approximately 1/2 of the 5-4 cases is decided by a majority composed of the Chief Justice and Justices O'Connor, Scalia, Kennedy, and Thomas. This term, of the 17 cases decided so far that are 5-4 in whole or in part, only three were have been composed of that traditional conservative majority.
Although the alignments in this term's 5-4 cases are all over the map (with no Justice so far in fewer than eight 5-4 majorities or more than ten), this will (I think) be the first term in which there are fewer cases decided by the five most conservative Justices than by majorities composed of their four more liberal colleagues plus one of the conservatives. So far, the latter scenario has occurred five times -- twice with Justice O'Connor, twice with Justice Kennedy, and once with Justice Scalia.
Taking a close look at these numbers gives a fresh reminder of how nuanced one has to be in describing the functioning of the present Court. There are now so many fault lines with so many different permutations of alliance that it has become difficult, I think, to paint a picture with any kind of broad brushstrokes.
This is something to keep in mind amidst all of the nomination speculation, when you hear the talking heads declare that replacing Rehnquist or O'Connor with this or that justice means X or Y doctrine will be in jeopardy or in play.
It might also be a good reminder to the folks at the Associated Press to not simply assume that Justice O'Connor is the swing vote on every case:
In that 5-4 ruling and another decision involving the positioning of a 6-foot granite monument of the Ten Commandments on the grounds of the Texas capitol, Justice Sandra Day O'Connor was the swing vote. The second ruling, likewise, was by a 5-4 margin.
In today's dual 5-4 Ten Commandments cases, it was actually Justice Breyer who was in the majority both times, joining the dissenters from McCreary County to uphold the the Texas capitol monument. Justice O'Connor wrote a dissent in the Texas capitol case.
UPDATE: Looks like somebody sort of figured it out. CNN's own story (rather than the AP wire story quoted above) reads:
Justice Stephen Breyer, considered a moderate liberal, voted against the displays in Kentucky but in favor of the one in Texas.
Justice Sandra Day O'Connor, a moderate conservative, voted against the displays in both states and cast the swing vote in the Kentucky decision, which stopped short of forbidding such exhibits on all court or government property.
O'Connor did write a concurrence in McCreary rather than join the plurality opinion, so in that sense she was the key vote. However, I'd say it would be more accurate to say Breyer was the swing vote in both cases, since he is the one who actually "swung."