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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Evidence-Based Decision Making: The Increasing Use of Research in our Criminal Justice System

There is a growing trend in the criminal justice field to integrate evidence-based decision making, or EBDM, into local justice systems.  At its simplest, EBDM can be described as the practice of using what has been proven to work.  It places the primary reliance upon current and sound research, rather than upon anecdotal information, guesswork, or solely the experience of an individual.  While the use of evidence-based decision making is relatively new to the field of criminal justice, the healthcare industry has embraced EBDM for sometime.
The promise of evidence-based decision making is that it produces more consistent and better outcomes, as confirmed by the underlying research.  In the criminal justice system, the benefits include the implementation of policies and practices that meet the goals of maximizing public safety, reducing the risk of reoffending, more appropriate allocation of limited resources, and reducing costs.

Wisconsin is at the forefront of the trend towards the introduction of EBDM into its criminal justice systems.  

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Do I Need to Draw You a Picture? The Zimmerman Trial and CGI Evidence

The Zimmerman trial nicely illustrates how messy trials can be. Witnesses contradict one another on most critical issues. For example, a bevy of witnesses have split over whether it was the victim Trayvon Martin or the defendant George Zimmerman screaming for help on the 911 recording. Moreover, the split among witnesses is, predictably, along party lines: friends and relatives of each claim the voice as their own. To make things messier, some of these witnesses seem to have contradicted themselves, asserting earlier that they couldn’t recognize the voice despite their trial testimony that now positively identifies it. Adding to the confusion, some witnesses deny making the earlier inconsistent statements.

So, what’s the jury to make of this morass? The defense solution is to draw a picture – literally. Yesterday the parties sparred over the defense’s attempts to introduce a computer-animated recreation of the fatal struggle between Zimmerman and Martin. Computer-graphic imaging (CGI) technology is being used more and more to recreate events in a myriad of cases. A week of conflicting testimony may be reduced to a 60-second cartoon.

There are two problems here. First, the accuracy (authentication) of a CGI recreation depends on its fidelity to the historical record: does it accurately reflect what occurred? Hard to say in this case. Martin is dead. Zimmerman has not testified. The CGI recreation rests on the creators’ reconstruction of events based on conflicting pretrial statements, including Zimmerman’s, some of which have been contradicted by trial testimony, itself no model of clarity.

Put differently, the CGI recreation is the animators’ version of the shooting, resting heavily on the defense version of events. It is tantamount to Zimmerman’s story of what occurred with one crucial difference: Zimmerman does not have to take the stand and face cross-examination under oath about any of it. My own view is that it should be excluded unless Zimmerman takes the stand and testifies that it “fairly and accurately” depicts what happened.

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