A Few Notes on 5-4 Cases

Entering what many expect will be the Court’s final public sitting of October Term 2006, the Justices have issued 21 decisions 5-4 (based on our judgment). While the figure is not remarkable as a raw total, as a percentage of of the Court’s decisions it falls at the high end of the spectrum when looking at terms in recent history. Indeed, if more than one of the Court’s remaining cases are decided 5-4, OT06 would produce a higher share of 5-4 decisions than any term in the last decade.

Following Monday’s session, during which the Court handed down four 5-4 decisions, more than 30% of cases this Term have been decided 5-4. (Note: this total also includes the 5-3 decision in Watters, in which Justice Thomas recused himself but, we believe, would have likely joined the dissent.) By issuing two 5-4 decisions on Thursday, that figure would climb to 31.9% – the highest of any sitting in the last ten years.

The last time 30% of the Court’s decisions fell along 5-4 lines was OT04, when the Justices issued 5-4 decisions in 24 of 80 cases. During that term, the Court’s left-leaning members together won eight 5-4 cases (picking up Justice O’Connor in four cases, Justice Kennedy in three cases and Justice Scalia in one case). The Court’s five more conservative members (which then consisted of the late Chief Justice Rehnquist, former Justice O’Connor, and Justices Scalia, Kennedy and Thomas) together prevailed in five cases.

By contrast, this term the left-of-center Justices have prevailed thus far in only five of the 21 cases decided 5-4 (24%) – and none have enjoyed a 5-4 victory since April 25, when the Court handed down Smith, Brewer and Abdul-Kabir. The Court’s more conservative members have had a comparatively more successful run in 5-4 cases, forming majorities in 11 of 21 cases (52%). The Court’s most successful member of all, of course, has been Justice Kennedy – who voted with the majority in every 5-4 decision issued thus far.

To view a SCOTUSblog voting chart for each 5-4 decision this term, click here to download a PDF, click here for a pop-up image sorted by membership in the 5-4 majorities, or here for a pop-up image sorted by left-right voting patterns. Should any of Thursday’s opinions be decided 5-4, we will provide an updated version.