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By the Numbers: Criminal Cases in OT06

The Supreme Court dedicated nearly a third of its docket to criminal cases (including habeas) during the recently completed term, ruling against defendants almost twice as often as in their favor. Unlike business cases, which produced relatively little dissent, the criminal docket highlighted the Court’s increasing ideological divide. More than 45% of criminal cases were decided 5-4 – all but one along ideological lines – versus 33% of the docket as a whole. The Chief Justice and Justice Alito compiled nearly identical voting records in their first full term together on the bench, aligning almost always with Justices Scalia and Thomas. Meanwhile, the left-leaning Justices also recorded higher than normal rates of agreement. Below, we look deeper inside the numbers. (Note: while not all cases involved individuals currently facing charges, this post refers to “defendants” for the sake of simplicity.)

For and Against the Defendant

The Court heard 22 criminal cases (out of 72 total) during the term, ruling eight times for and 14 times against the defendant. Individually, the Justices cast 81 votes for defendants and 117 votes against them. Justice Stevens voted 16 times for the defendant, more than any other Justice, followed by Justice Souter (15), Justice Ginsburg (14), Justice Breyer (12), Justice Kennedy (7), Justice Scalia (6), Justice Roberts (4), Justice Thomas (4) and Justice Alito (3). Of the six cases where Justice Stevens voted against the defendant, five were unanimous and one was 8-1 (Rita, Justice Souter dissenting). Likewise, of the three cases where Justice Alito voted for the defendant, two were unanimous and one was 8-1 (Lopez, Justice Thomas dissenting). For a chart showing how often each Justice voted for and against defendants, click here.

By Circuit

The justices heard nine appeals from the Ninth Circuit – more than twice as many as the next federal appellate court – affirming once and reversing or vacating in the other eight cases. Individually, the Justices cast 23 votes to affirm and 58 votes to reverse what many consider the most defendant-friendly circuit. The Court issued four unanimous rulings in Ninth Circuit appeals – all going against the defendant – three times to reverse and once to affirm. Three rulings were 5-4 (all reversals), with Kennedy joining the four conservatives in holding against the defendant. Only once did the Court overrule the Ninth Circuit in favor of the defendant (Lopez). The Court also heard four criminal appeals from the Fifth Circuit involving Texas death penalty cases. They reversed each 5-4, with Kennedy joining the more liberal Justices. In an odd statistical twist, the Justices voted twice to affirm and once to reverse appeals from the Eleventh Circuit – though, individually, they cast 11 votes to affirm versus 16 to reverse. For a chart showing each circuit’s record in criminal cases, click here.

Level of Agreement

The Chief Justice and Justice Alito agreed in full in 21 out of 22 cases, the most of any pair of justices. Cunningham was the only case in which they disagreed, with Roberts voting to strike down California’s “determinate sentencing law” and Alito voting to uphold it. The Chief Justice, Justice Scalia and Justice Thomas agreed with one another in 20 of 22 cases, as did Justice Ginsburg with Justices Breyer and Stevens. Justice Kennedy agreed in full more than half the time with all Justices except Ginsburg (45%) and Stevens (41%). Justice Breyer disagreed with both Justice Scalia and Justice Thomas in 13 out of 22 cases, more than any other pair of Justices. Justice Alito disagreed with Justice Ginsburg and Justice Breyer in 12 cases, as did Justice Souter with Justice Scalia and Justice Thomas. For charts showing agreement levels in criminal cases, click here.

Voting Patterns

Justice Kennedy led the way with majority votes in 21 of 22 cases, dissenting only in Cunningham (one of two cases all term in which he voted with the minority). He was followed by Chief Justice Roberts (18), Justice Alito (17), Justice Scalia (16), Justice Souter (16), Justice Thomas (16), Justice Breyer (15), Justice Ginsburg (15) and Justice Stevens (15). Ten of the cases were decided 5-4; in nine, Kennedy joined either the four liberals or four conservatives in the majority. The defendant won each time Kennedy joined the liberals and lost each time he joined the conservatives. The tenth case, James, saw Chief Justice Roberts, Justice Kennedy, Justice Souter, Justice Breyer and Justice Alito join in holding that attempted burglary convictions under state law counted as “violent felonies” for purposes of federal sentencing guidelines. For a chart showing how often each Justice voted with the majority, click here.


Justice Kennedy wrote four opinions in criminal cases, ruling twice for and twice against the defendant (4, 2-2). Justice Thomas also wrote four opinions, each going against the defendant (4, 0-4). They were followed by Justice Scalia with (3, 0-3), Justice Stevens (3, 2-1), Justice Alito (2, 0-2), Justice Breyer (2, 0-2), Justice Souter (2, 1-1), Justice Ginsburg (1, 1-0) and Chief Justice Roberts (1, 1-0).