After the Supreme Court released its most recent set of decisions last Thursday, SCOTUSBlog’s James Romoser captured a unique insight of the justices’ votes so far – newly appointed Justice Jackson is the only justice so far who has been entirely in the majority in each of the Court’s six decisions. This was potentially surprising for several reasons, but most obviously because Justice Jackson has been labeled by many (including by the President) as a liberal replacement for Justice Breyer. On a majority conservative Court, it is unusual to have the last justice in all of the Court’s majorities not be aligned with the Court’s predominant ideological viewpoint.
To be fair, the first set of decisions this term, like in most terms, are not in particularly ideologically laden cases. Still, the justices predominantly split along ideological lines even in this early set of cases.
These facets of the decisions so far this term beg some historical context. Specifically, how unusual is it for a justice to be the last justice standing (the last justice in consecutive Court majorities at the beginning of the term) and in how many majorities have justices voted consecutively to start off their tenures on the Supreme Court? What are the longest runs of consecutive votes in the majority to start out a term? Finally, how often have the justices remained in the majority during a term?
KBJ as the last justice standing
One surprise this term is the makeups of the Court’s majorities in its first six decisions. Some of these majorities include Justices Roberts, Kavanaugh, Kagan, Sotomayor, and Jackson in Cruz v. Arizona; Kagan, Roberts, Thomas, Sotomayor, Barrett, and Jackson in Helix Energy v. Hewitt; and Gorsuch, Roberts, Jackson, Alito, and Kavanaugh in Bittner v. United States. By joining the more conservative justices in Bittner, Justice Jackson secured her spot as the only justice that has not dissented or concurred from an opinion so far this term.
How unusual is it for a justice new to the Court to remain the last justice to agree in full with every decision in his or her first term? It is pretty unusual. The only other sitting justice to start service on the Court in the calendar year the term began and to be the last justice standing without a concurrence and dissent is Justice Kavanaugh.
These consecutive vote counts focus only on cases where the justice of interest voted. If they did not vote in the case, it was skipped during the analysis. If the justice began service at the end of a term the decisions when the justice began service were analyzed alongside those at the beginning of the justice’s first full term. Here are additional details.
Justice Jackson was in the majority in all six of the Court’s decisions on the merits. Moving from Justice Barrett the newest justice prior to Jackson, to Thomas, the longest sitting Justice on the Court we see the following:
- During the 2020 Term Justice Barrett was only in the majority in her first three decisions. She dissented in the fourth, Salinas v. United States, and was not the last justice standing in 2020.
- Justice Kavanaugh was in the majority without concurrences or dissents in his first 12 decisions during his first term on the Court in 2018. He concurred with the 13th decision in Nielsen v. Preap.
- Justice Gorsuch began his service on the Court at the end of the 2016 Term. Gorsuch was in the majority in his first seven decisions, dissenting in the eighth case, McWilliams v. Dunn. Justice Gorsuch was not the last justice standing at the end of the 2016 term as Justice Kennedy was in all of the majorities with Justice Gorsuch as well as in the majority in the next decision, McWilliams v. Dunn. If we treat Justice Gorsuch’s first term as the 2017 term, Justice Gorsuch was also not the last justice standing as he dissented in the Court’s third decision, Artis v. District of Columbia.
- Justice Kagan began her service on the Court during the 2010 term. Due to recusals stemming from her service as the Solicitor General, she missed several of the term’s first decisions. Focusing on the cases in which she participated, she was in the first 11 majorities without concurrences. She was not, however, the last justice standing that term.
- Justice Sotomayor started her tenure as a Supreme Court Justice at the beginning of the 2009 Term. She was in the majority in her first nine decisions without a concurrence, but she was not the last justice standing in 2009. Justices Breyer and Scalia were the last justices standing for the 2009 term when Justice Breyer dissented, and Justice Scalia concurred with the decision in Citizens United v. FEC.
- Like Justice Gorsuch, Justice Alito began his service on the Court in the latter part of a term. In Alito’s case it was in the second half of the 2005 Term. Alito was the last justice standing based in his first 15 votes in cases that term as no other justice was in each of those majorities along with Justice Alito. If we treat 2006 as Alito’s first term, he was not the last justice standing. In 2006 Alito was in the majority without concurrences in the Court’s first seven decisions before concurring in Norfolk Southern Railway v. Sorrell.
- Chief Justice Roberts was in the majority in the first 12 cases in which he participated when he began service on the Court in 2005, before dissenting in the 13th decision in Gonzales v. Oregon. He was not the last justice standing though as Justice O’Connor was in the first 20 majorities that term before retiring from the Court.
- Justice Thomas was not the last justice standing when he began service in 1991. Thomas was only in the majority without a concurrence in his first four decisions that term. Justice White was the last justice standing in 1991 Term with 24 consecutive votes in the majority without a concurrence to start out the term.
Who was the last justice standing?
Over the past 10 terms (2011 through 2021) we saw the following:
- 2021: Justice Kavanaugh was the last justice standing as he was in the majority for the Court’s first six decisions before dissenting in Hemphill v. New York.
- Justices Roberts and Kavanaugh were both in the majority for the first 14 decisions of the 2021 term before Justice Roberts dissented and Justice Kavanaugh concurred in Uzuegbunam v. Preczewski.
- Roberts was in the majority for the first 19 decisions of the 2019 term before dissenting in Ramos v. Louisiana.
- As mentioned above, Kavanaugh was in the majority of the Court’s first 12 decisions in 2018 before he concurred in Nielsen v. Preap.
- Roberts was the last justice standing in 2017, voting in the majority in the Court’s first nine decisions before dissenting in Patchak v. Zinke.
- Justice Kagan set the record for the longest run of majority votes at the beginning of a term during this period with 29 in 2016 before dissenting in Midland Funding v. Johnson.
- Justice Kennedy was the last justice standing in 2015 with 19 majority votes before dissenting in Luis v. United States.
- Justice Breyer was the last justice standing in 2014. Breyer concurred in the 14th decision that term which was M&G Polymers v. Tackett.
- Justice Kennedy was the last justice standing during the 2013 term voting in the majority without concurrences in the Court’s first 19 decisions before dissenting in Chadbourne and Parke v. Troice.
- Chief Justice Roberts was the last justice standing for the 2012 term. This was the second longest run of pure majority votes at the beginning of a term with 25. Roberts concurred in the 26th decision which was Decker v. Northwest Environmental Defense Center.
- Lastly, Roberts was the last justice standing for the 2011 term dissenting in the Court’s 15th decision that term which was Connick v. Thompson.
Consecutive majority votes
Another way to view these justices’ voting consistency in the majority is through runs of cases where they do not dissent. The following figure looks at each of the sitting justice’s (aside from Jackson) longest runs of majority votes (this time majority votes include concurrences) during their times on the Court. The figure below has the terms where these runs occurred towards the bottom.
Justice Kavanaugh’s run of 60 majority votes is 20 more than Roberts’ 40 votes which is the second most for these years. Roberts is followed closely behind by Justice Kagan at 36 consecutive votes. Justice Sotomayor’s longest run is the shortest of the sitting justices with 21 consecutive majority votes in the 2014 Term.
The components explored above all measure consistency. They also, however, measure the center of the Court at a particular point in time. It should come as no surprise that the last justices standing were often those associated with the middle of the Court including Justices Kavanaugh, Roberts, and Kennedy. The fact that Kavanaugh was a last justice standing in his first term underscores his place near the center of the Court. Justice Jackson’s position as the last justice standing is more of a surprise. Few think Justice Jackson will be a centrist justice, especially at a time when the Court is so split with a strong conservative majority and a liberal minority. Even though Justice Jackson is the last justice standing, the Court has only released six decisions on the merits. Jackson may, therefore, very possibly be the last justice standing in a term with a very short run in the majority for all justices.
The measures not relating to the justices’ first terms show something similar. Justices closer to the center of the Court have longer runs in the majority than justices more towards the periphery. While these measures present isolate instances of consistent votes they are also emblematic of the state of the Court at given points in time. While Justice Jackson’s streak in the majority is more likely an anomaly than an indicator of her future positions, it will be something to follow throughout her first term on the Court.
The Supreme Court Database was used to track cases in this post.
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