Dahlia and Walter:
I started off this week with some statistics about the term so far. Math-challenged as I am, I’m bemused to now find myself the Breakfast Table’s unofficial statistician, but here are some updates and new data: It’s striking that with just three decisions to go, Justice Kennedy has the fewest majority opinions so far this term: only six. Justice Scalia has the most: 10. Here are the others: Thomas, nine; Stevens, nine; Roberts, eight; Breyer, eight; Souter, eight; Alito, seven; Ginsburg, seven.
From the court’s April argument sitting, consisting of 10 cases, only two are undecided: Ricci, the New Haven firefighter case, and Cuomo v. Clearing House (bank regulation preemption). Kennedy is the only justice with no opinions from April. That makes it quite likely that he has Ricci—not, one would suppose, very good news for New Haven. The third remaining case, Citizens United v. F.E.C. (campaign finance) is the only undecided case from March, a sitting that had only six arguments. Roberts, Alito, and Ginsburg are all without opinions from March. I’m betting that the chief has that case. He is interested in the subject, and is not likely to go without an opinion for a whole sitting, albeit a sparse one.
There have now been 72 cases decided with full opinions, of which 21 have been decided by a vote of 5-4. Of these 21, 16 have been the usual four versus the usual four, with Kennedy joining the conservatives 11 times and the liberals five times. Kennedy has been in dissent in three of the 5-4 cases that broke the usual pattern, including two decided yesterday (Atlantic Sounding and Melendez-Diaz), plus Arizona v. Gant. He has cast four dissenting votes all term.
Here is how the others line up in terms of dissenting votes cast: Roberts, 12; Thomas, 13; Alito, 13; Scalia, 14—for a conservative total of 52 dissenting votes. On the other end of the bench: Breyer, 18; Ginsburg, 23; Souter, 24; Stevens, 27—for a liberal dissenting-vote total of 92. (This last set of numbers is open to debate—I am counting Stevens and Ginsburg as having cast dissenting votes yesterday in the strip-search case based on their concurring/dissenting opinion that would have denied qualified immunity to the school officials, but one could certainly argue that it’s more significant that they joined the Souter majority in the Fourth Amendment holding.)
Aren’t numbers fun? I never used to think so.