Are There Three Factions on the United States Supreme Court?

SCtThe way that the media reports on the Supreme Court, one gets the impression that the Court is divided into two intractable four-justice blocs, with Justice Anthony Kennedy deciding most of the cases by swaying back and forth between the two blocs.

(Under this interpretation, the conservative block is made up of Chief Justice John Roberts, as well as Justices Alito, Scalia and Thomas, while the liberal bloc includes Justices Breyer, Ginsburg, Kagan, and Sotomayor.)

Using data compiled from the SCOTUS blog regarding the Court’s 5-4 decisions since the appointment of Chief Justice Roberts, the Court actually divides into three three-justice blocs:

An all-female, “liberal” bloc including Justices Ginsburg, Kagan, and Sotomayor, who agree with each other virtually all the time; an all-male, three judge “conservative” bloc made up of Justices Roberts, Alito, and Thomas, who agree with each other in the vast majority of cases, but without quite the same degree of uniformity as their liberal counterparts.  This leaves a three justice bloc in the middle, composed of Justices Breyer, Kennedy, and Scalia, who are less likely to agree with the members of the other two blocs.

In the first bloc, Justices Ginsburg and Kagan have never disagreed with each other in regard to the result in a case that was decided by a 5-4 margin.  Justice Sotomayor, in contrast, has agreed with both Ginsburg and Kagan a mere 95% of the time.

In the second block, Justices Roberts and Alito have reached the same result 95% of the time in 5-4 decisions.  Thomas and Alito have agreed 91% of the time, while the figure for Thomas and Roberts is 87%.

The justices in the middle group are, in many ways the most interesting.  They are grouped together not because they agree with each other (which they do not), but because their voting patterns often fail to align with either of the other two groups.  Justices Kennedy and Breyer have reached the same result in 43% of the cases, while Kennedy and Scalia have been together 52% of the time.  Perhaps the most remarkable statistic, however, is that Scalia and Breyer have voted with each other in only 4% of the court’s 5-4 decisions since 2006.

As the following table indicates, Justice Breyer votes much more frequently with the “liberal” first group, while both Kennedy and Scalia side with the “conservative” second group approximately two-thirds and three-fourths of the time, respectively.

Voting with Ginsburg Kagan Sotomayor Thomas Roberts Alito
BREYER 78% 78% 73% 26% 26% 23%
KENNEDY 30% 30% 36% 61% 65% 73%
SCALIA 26% 265 23% 74% 78% 73%

The pairings least likely to vote together in 5-4 cases are Alito-Ginsburg; Alito-Kagan; and Roberts-Sotomayor.  The two justices in those pairings have never voted with each other in a 5-4 decision.  Also normally disagreeing are Breyer-Scalia (4% agreement, discussed above); Alito-Sotomayor (5%); Thomas-Ginsburg (9%); Thomas-Kagan (9%); and Thomas-Sotomayor (14%).

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Supreme Court Reaffirms “Categorical Approach” in Applying Armed Career Criminal Act

Has Congress ever made the federal courts do more work to little so good effect than it did when it passed the Armed Career Criminal Act in 1984? The ACCA imposes a fifteen-year mandatory minimum on certain federal defendants who have three prior convictions for a violent felony or serious drug crime, which are defined terms in the statute. The basic application problem is that we have fifty different state criminal codes, and state legislatures never saw fit to amend their laws so as to fit their crime definitions to the ACCA terminology. As a result, figuring out which state convictions count as ACCA predicates has consumed — and continutes to consume — an enormous amount of judicial time and effort. A few lines of statutory text have generated a marvelously intricate, uncertain, and ever-changing body of jurisprudence.

The Supreme Court offered its latest foray into the ACCA quagmire yesterday in Descamps v. United States (No. 11-9540). At issue was whether Descamps’s prior burglary conviction in California could be used as a predicate for the fifteen-year ACCA mandatory minimum. The statutory definition of “violent felony” does include “burglary,” but the Court has previously held that not all burglary convictions count; rather, the crime of conviction must have the elements of “generic burglary” — if a state has chosen to define the crime of burglary in an unusually broad manner, then convictions of burlgary in that state may not be treated as burglary convictions for ACCA purposes.

And it turns out that California does have an idiosyncratic burglary definition. 

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So Long, Harris — Breyer’s on Board

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come. 

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