by Matt Barr

More court stats - the majority maker

Looking at the data from which I pulled together the material in this post, I became interested in the composition of five-judge majorities in the 2004 term, hoping to see if anything interesting emerged. There have only been 14 five Justice majority opinions, a small sample size. So later in the day I took the time to look over the five Justice majority opinions from the 2003 term, too.

Same caveats apply about what I mean by "majorities" from the previous post. If a Justice declined to join even a small part of the Court's opinion, he or she was not counted as part of the "majority" -- for bright line rule purposes. I realize that when you're specifically trying to identify voting blocs, that rule isn't efficient, but I was following it already and didn't want to change. During the 2003 term there were a number of cases -- Veith v. Jubelirer, Thornton v. U.S., for example -- where there was a five Justice voting majority, but only four joined an opinion. I did not count those as five Justice majorities for the purposes of these stats. It would be an interesting project I may undertake later trying to sort through which Justices voted which way on all issues and opinions, but that's beyond the scope of this post.

So, "majority maker" may be a misnomer. But it hardly matters, given how Ms. Justice O'Connor laps the field when it comes to voting with five Justice blocs. (Her performance is beyond any margin of error you want to apply.)

O'Connor, J.

.806

Souter, J.

.583

Ginsburg, J.

.556

Stevens, J.

.556

Rehnquist, C.J.

.531

Breyer, J.

.528

Thomas, J.

.528

Kennedy, J.

.528

Scalia, J.

.457

Data is for 36 five Justice blocs from the 2003 and 2004 terms, including two for Booker as in the previous post and three for McConnell v. F.E.C. from 2003. Chief Justice Rehnquist participated in 32 of the 36 cases and Mr. Justice Scalia 35, and their percentages so reflect.

That six out of nine Justices joined the slimmest majorities between 52.8 and 55.6 percent of the time and Ms. Justice O'Connor 80.6 percent of the time -- roughly 50 percent more often than most of her colleagues -- is just astounding. These represent by definition the hardest, most divisive cases there are, and you would expect by random chance a Justice to line up with the majority a little over half the time -- which most do. "Protest votes," and situations where a Justice might vote with a safe majority because his/her contrary vote would serve no good purpose, are eliminated when the stakes are so high, and each vote so valuable.

Without delving into the merits of each case, it's natural to wonder whether O'Connor is more willing to change her mind to either accomplish a result more quickly, or barter for support in another case, or some other motivation than a principled consideration of the merits. I mean to suggest no such thing, just that the numbers are so glaring that the question would naturally be asked.

I suppose you're wondering which five Justice bloc forms most often? If you guessed Rehnquist, O'Connor, Scalia, Kennedy and Thomas, you'd be right -- nine times -- but another bloc occurs just as often: Stevens, O'Connor, Souter, Breyer and Ginsburg. Each has occurred twice so far in the 2004 term, and each seven times last term. Each has exactly one Justice in common.

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