Patterns of Eight Justices: Will They Persist with a New Court Member?

The Supreme Court has had eight members for over a year now.  In that time the Justices authored seventy-seven majority opinions.  Of those opinions sixty-eight were signed.  Through this period there have been some interesting idiosyncrasies from the Justices that we haven’t seen in the past.  We have seen new potential voting coalitions as well as the solidification of old ones.  If Judge Gorsuch is confirmed to the Court, many expect the Justices to revert back to their old voting patterns (substituting Judge Gorsuch’s votes for Justice Scalia’s).  Over this year, however, the middle of the Court may have shifted slightly and it will be interesting to see if there continue to be new unifications between some Justices as well as polarizations between others.

The 2016 Court may not be the same as it was in 2015.  There appears to be fewer fractures among the Justices through the first twenty-one total majority opinions (eighteen of which are signed).  We have not seen any equally divided votes so far this term as we did in the 2015 term. In 2015 four cases ended with this outcome: Hawkins v. Community Bank, Dollar General v. Mississippi Band of Choctaw Indians, Friedrichs v. California Teachers’ Association, and United States v. Texas.  This may also have to do with the contentiousness (or lack thereof) of the cases before the Court early in the term.  There were no dissents, for instance, through the first eight decisions.  This changed with the ninth decision in Buck v. Davis where Justices Thomas and Alito dissented from Chief Justice Roberts majority opinion.

In terms of dissents in this 2016 term, Justice Thomas leads the way in 2016 with five followed by Justice Alito with four.

2016Dissents.png

Justice Kagan on the other hand is the only Justice not yet to dissent so far this term and the nine combined dissents from Justices Thomas and Alito are three more than the six combined from the rest of the Justices.  If anything, Justices Thomas and Alito have begun to stake ground as the new right of the Court with Justice Roberts appearing more inclined towards the middle.  We see this with Justice Roberts dissents in cases since Justice Scalia left the Court.

RobDissent.png

Not only has Justice Roberts only dissented seven times, but he also only dissented multiple times from Justice Kennedy’s and Justice Breyer’s opinions.  Justices Kennedy and Justice Breyer are currently considered the middle of the current eight-member Court.  This may be an artifact of Justice Roberts’ attempt to build consensus among the Justices, especially in a time when the Court is often viewed as polarized and where equally divided votes leave cases without any input from the Court.

To be sure, we have seen specific patterns of polarization since Justice Scalia passed away, although the Justices’ ability to form new majority coalitions has prevented more frequent equally divided votes.  Justice Thomas is far and away the most frequent dissenter since Justice Scalia’s passing.

TotalDissents.png

Justice Thomas’ twenty-four dissents far exceed the next most frequent dissenter, Justice Alito with eighteen, and doubles the number of dissents from any Justice on the Court’s left (Justice Sotomayor has dissented twelve times from majority decisions during the same period).  In another move showing the possibility of a shifting of the Court’s center, Justice Kagan equaled Justice Kennedy’s dissent count with three as the Justices who have dissented the least since Justice Scalia passed away.

When we look at dissenting coalitions with more than two dissents over the same period, three of the four grouping are from the Court’s right.

DissentCoalitions.png

* In all figures, each column does not factor in the data from any of the other columns.

 

The only combination from the left of the Court is the six instances where Justices Ginsburg and Sotomayor have dissented in the same cases. We have seen a fairly even spread among the Justices for majority opinion authorship in the sixty-eight signed majority opinions during this period.

MajAuthor.png

The range of signed majority opinions runs from Justice Kennedy’s eleven to Justices Thomas’ and Ginsburg’s seven apiece.  Interestingly, during this period Justice Ginsburg has had the fewest written opinions with dissents with only one.  This dissent, from the opinion in Bank Markazi v. Peterson, was also notable since it was one of the few times we have seen the combination of Justices Roberts and Sotomayor combine for a dissent.

Further emphasizing the distance between Justices Thomas and Alito on the right from the other Justices on the Court, the next graph charts pairs of majority opinion writers and dissenters since Justice Scalia passed away.

MajDissentPairs.png

Several points jump out of this graph.  First, Justices Thomas dissented from more than half of Justice Kennedy’s written opinions during this period.  Next, Justices Thomas and Alito are dissenters in most of the instances with three or more dissents.  The only other two pairs with three or more dissents are Justice Roberts from Justice Kennedy’s opinions and Justice Breyer from Justice Kagan’s decisions (Justice Thomas notably also dissented three times from Justice Alito’s opinions).  While many others dissented during this period, Justices Alito and Thomas dissented in more than half of the pairs of majority author/dissenters.

The Court is in a unique position. While it is entirely possible that with an additional Justice we will see a reversion to a split Court with Justice Kennedy once again in the middle, there exists a possibility that Justices Thomas and Alito have distanced themselves from Chief Justice Roberts over the past year.  If this is the case, we may see more decisions with Justices Thomas and Alito in dissent and where Judge Gorsuch (if confirmed) will have to either entrench himself within this coalition or somewhere to the left of it.


On Twitter: @AdamSFeldman

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