A Few Notes on 5-4 Cases
on Jun 27, 2007 at 7:48 pm
Entering what many expect will be the Courtâ€™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 Courtâ€™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 Mondayâ€™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% â€“ the highest of any sitting in the last ten years.
The last time 30% of the Courtâ€™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 Courtâ€™s left-leaning members together won eight 5-4 cases (picking up Justice Oâ€™Connor in four cases, Justice Kennedy in three cases and Justice Scalia in one case). The Courtâ€™s five more conservative members (which then consisted of the late Chief Justice Rehnquist, former Justice Oâ€™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%) â€“ and none have enjoyed a 5-4 victory since April 25, when the Court handed down Smith, Brewer and Abdul-Kabir. The Courtâ€™s more conservative members have had a comparatively more successful run in 5-4 cases, forming majorities in 11 of 21 cases (52%). The Courtâ€™s most successful member of all, of course, has been Justice Kennedy â€“ 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 Thursdayâ€™s opinions be decided 5-4, we will provide an updated version.