Lots of noise is made about partisan and ideological divides on the Supreme Court. There tends to be less hubbub surrounding instances when justices that traditionally divide ideologically, vote together. Such surprising coalitions formed in the majority and dissent for the Court’s decision in last week’s Patchak v. Zinke ruling. Although this decision was met with only limited fanfare (including this post from Jonathan Adler of the Volokh Conspiracy), the split of justices was quite interesting and unique. Justice Thomas, possibly the Court’s staunchest conservative, wrote the majority opinion in Patchak and was joined by Justice Alito along with traditionally liberal Justices Breyer and Kagan. Justice Ginsburg, also traditionally a liberal, made up the remainder of the majority coalition with a concurrence in the judgment. This left Justice Thomas’ usual compatriots – Justices Roberts, Gorsuch, and Kennedy (who tends to be a majority vote regardless of the opinion author) in dissent – a first for this trio. This post takes a similar although not identical vantage looking at dissenting coalitions that brought the right and left wings of the Court together between the 2010 term when Justice Kagan joined the Court and the end of the previous term.
This blog ran a post at the end of the 2015 term looking at interesting voting coalitions for that term. This post is an extension of that post in some ways although with more quantitative depth. We can see across the terms, for example, that 2015 was one of the terms with the most of these interesting dissenting coalitions since 2010.
Last term, by contrast, had the fewest such coalitions.
A dissenting coalition was coded as falling into this category when it included at least one traditionally liberal justice (Kagan, Breyer, Ginsburg, or Sotomayor) and at least one traditionally conservative justice (Scalia, Thomas, Roberts, or Alito). Due to his median status, Justice Kennedy was not coded as belonging to either wing. As Justice Gorsuch was not involved in any such coalition during his first partial term in 2016/2017, he is not discussed in any greater depth.
First a look at justice pairings. The following figure accounts for every pairing of a traditionally liberal and conservative justice in dissent for the specified terms. It does not account for whether other justices were included in such dissents.
At the top of the list we have Justices Scalia and Ginsburg who, for all of their differences, were noted as quite close outside of their differing views on the law. Justice Scalia was also involved in the second most common pairing with Justice Kagan. On the other end of the spectrum we have Justices Kagan and Roberts with no common dissents as well as Justices Scalia and Breyer with the same.
When extended to all justice dissent combinations of two or more justices with at least one noted combination from above and at two common instances we get the following figure. The figure also looks at the area of law of these decisions as well.
The most common combination was Justices Ginsburg, Sotomayor, Kagan, and Scalia. These justices dissented in a variety of different topic areas (as coded in the Supreme Court Database) ranging from First Amendment to criminal justice rights. Justices Ginsburg and Thomas appear to share some common ground the issue of state taxation. Justices Kennedy, Breyer, Roberts, and Alito seem to share views in the realm of criminal procedure while the tie that binds Justices Kennedy, Thomas, Scalia, and Kagan is more opaque.
Several of the justices majority opinions precipitated more of these dissenting coalitions than others. This breakdown is displayed below.
While Justices Kagan’s and Ginsburg’s majority opinions garnered the most such dissents, Justices Roberts’ and Thomas’ garnered the fewest. Interestingly, the more liberal justices line up at the high end of such majority opinions with Justice Kennedy in the middle and the more conservative justices on the low end.
Parties and Attorneys
Several types of petitioners and respondents were frequently involved in this set of cases. First, the list of repeat petitioner types is shown below. The coding for win/loss examines the side that won the case and so the dissenting coalition of note was aligned with the “loss” side in each case.
Many of the cases in this set involved issues of criminal law and not surprisingly two of the petitioner types are criminal defendants and convicts. While defendants were only responsible for these interesting dissenting coalitions, convicts were more frequently aligned with the majorities in these cases.
On the respondent side the chart looks as follows:
The United States was the most common party type responsible for such dissenting coalitions. This is a logical outcome as the United States often offers some of the most persuasive arguments even when it is on the losing side of a case. The other respondent categories all had only wins and so they did not inspire any of the coalitions described above.
The last figure looks at the arguing attorneys precipitating this set of dissents along with their case experience in the Supreme Court. Attorneys from the OSG that were not Solicitors General were removed from the figure along with attorneys whose case participation data was not readily available.
The spectrum of attorneys in this chart is striking. The list includes several past SGs including Paul Clement, Ted Olson, and Gregory Garre. It also includes some of the most experienced Supreme Court litigators such as Carter Phillips, Tom Goldstein, Kevin Russell,Charles Rothfeld, and Kannon Shanmugam as well as Michigan’s ex-SG John Bursch. On the other end of the figure the modal value for attorneys’ SCOTUS experience is a single case. The majority of attorneys that precipitated such coalitions tried three or fewer cases before the Supreme Court. This hints at the fact that not only attorney experience, but also case specific factors likely play leading roles in such outcomes.
Also of note, two attorneys came up multiple times in these cases. The first is Gibson Dunn’s Mark A. Perry who came up twice – in Lawson v. FMR and Petrella v. MGM (both cases were decided in the 2013 term). Michael Dreeben was the most frequent attorney in this set with three arguments leading to such dissents. The arguments were in the cases Bailey v. United States, Southern Union v. United States, and Luis v. United States.
Although this set of forty two cases is only a limited slice of the justices’ workload, it shows the cases and case types where they have overcome general, philosophical differences to disagree with the Court’s majority in unison. It also shows that for all of the commentary on the Court’s ideological differences, several justices who tend to disagree still voluntarily paired in dissent. As the justices rose above ideological differences to reach the same or similar conclusions, this also presents a set of cases where traditional metrics of Supreme Court ideology do not do a strong job in predicting the justices’ votes.
On Twitter: @AdamSFeldman
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