by Matt Barr

Early OT 2005 Court stats

We like Court stats. Today the 50th non-per curiam, non-decree opinion was issued -- that is, the 50th opinion for which we can see the voting breakdown -- of the OT 2005 term. Also released today was the 18th such opinion Justice Alito has been involved in, which is the same number Justice O'Connor took part in this term before retiring. Remaining cases are probably contentious and will show us more in terms of voting relationships, but like last year (link above), I think it's useful to take an advance look.

The same caveat as last year: Where a Justice joined in the judgment but not the opinion of the Court, or even part of that opinion, I didn't count him or her as voting "with the majority." This is simply for ease of calculation. When it comes to identifying voting blocs, this becomes slightly more problematic, but less so the more data you accumulate.

Before giving you some raw numbers, one thing is absolutely clear: This Court builds consensus far more often than the Rehnquist Court did at the end.

• Last year through the first 38 opinions of the term there were 11 unanimous opinions, 29 percent. This year through 50 there have been 25 -- 50 percent. Last year's post was made in April, so the argument that the more contentious opnions haven't been released yet doesn't work, because that was true last year, too.
• Chief Justice Roberts has voted with the majority 91.8 percent of the time. Through 38 (actually, 28, in his case) cases last year, Chief Justice Rehnquist had voted with the majority 75 percent of the time, and no Justice was in the majority as often as nine out of 10 times.
• Justice Thomas has voted with the majority a Court-low 79.6 percent of the time. Last year through 38 cases, seven Justices had joined the majority less often than that. Through 38 opinions last year Justice Breyer had been in the majority second (to O'Connor) most often at 81.6 percent. Through 50 opinions this term, nine Justices (all, including O'Connor and Alito, but Thomas) have been in the majority more often.

Justices ranked by their frequency joining the majority:

100 O'Connor (out of 18) (mailed it in!)
91.8 Roberts (out of 49)
88.9 Alito (out of 18)
88 Kennedy
88 Souter
86 Ginsberg
86 Breyer
82 Stevens
82 Scalia
79.6 Thomas (out of 49)

Last year through 38 cases (reproduced here so you don't have to click back and forth):

89.5 O'Connor
81.6 Breyer
78.9 Souter
78.9 Kennedy
76.3 Ginsburg
75 Rehnquist (out of 28)
73.7 Scalia
73.7 Thomas
71.1 Stevens

O'Connor and Kennedy had voted together (by which I meant and mean either in the majority together or neither in the majority) nearly 85 percent of the time through 38 cases last year. In Alito's 18, he and Kennedy have been together 100 percent of the time. Other voting blocs this term so far:

Stevens/Scalia 68% (34/50)
Scalia/Thomas 85.7% (42/49)
The much-feared Scalia/Thomas/Alito bloc: 61.1% (11/18). In non-unanimous cases: 36.3% (4/11)
The less-feared Souter/Ginsberg/Breyer bloc: 84% (42/50). Non-unanimous: 68% (17/25)

Last year I observed and was amazed that Justice O'Connor was part of a 5-4 majority 80.6 percent of the time, with Justice Souter involved in a 5-4 majority the second most often at 58.3 percent. Who's this term's "majority maker"? It turns out not to be a very useful question -- there simply haven't been very many 5-4 cases; only seven. (Remember that for example today's Hudson v. Michigan decision doesn't count as 5-4 because Justice Kennedy didn't join all of the majority's opinion.) But the distribution is very interesting. Kennedy has been involved in five 5-4 majorities, Souter three, and all six other full-term Justices exactly four.

SCOTUSBlog proprietor Tom Goldstein has compiled year-end stats in the past, see for example here. I look forward to this year's. The incomplete numbers are very interesting.

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