Painting Justices by the Numbers

January 09, 1994

The Harvard Law Review's annual statistical analysis of the Supreme Court's last term is out. It paints a portrait by the numbers of a pale, compatible family of justices who agree with each other much more than is the historical norm.

This is best seen in the number of dissenting votes cast by the justices. There were only 175 for the 1992-1993 term. That is 27 fewer than in the 1991-1992 term, which was, itself, a low number. Over the past 20 years the justices dissented, on average, well over 300 times a term. "The Rehnquist Court," which began life in 1986, when William Rehnquist became chief justice, is a much more agreeable place than "the Burger Court," presided over by Chief Justice Warren Burger in the 1970s and until he retired in 1986.

A notable bit of arithmetic last term is that two justices each dissented fewer than 10 times. Justices almost never go a term and end up with single-digit dissent totals. Only two others did in the past 20 years, and not in the same terms. Last term Justice Antonin Scalia dissented eight times and Justice Anthony Kennedy seven.

As this suggests, the conservatives are comfortable with the direction of the court. Only two justices dissented with what used to be regarded as normal frequency. Justice Harry Blackmun did 37 times and Justice John Paul Stevens did 40 times. They are the court's two most liberal members. They were not even influential in close cases. In the court's 18 5-4 decisions, Justices Blackmun and/or Stevens cast a decisive fifth vote only eight times. (That is, if they had voted differently, the case would have been decided the other way.) Justices Scalia and Kennedy did that 16 times. That's 16 out of the total of 18 5-4 decisions. Justice Scalia voted with a majority of five 14 times. Justice Kennedy did 13 times. Chief Justice Rehnquist, also a solid conservative, voted with a majority of five 14 times, and Justice Clarence Thomas, another conservative, did 13 times.

Justice Sandra Day O'Connor and Justice David Souter, now considered the court's moderates or centrists by many, cast 19 and 22 dissents, respectively, more than any justices except Messrs. Blackmun and Stevens. An O'Connor and/or Souter vote was decisive in 11 of the 5-4 outcomes.

The 1993-1994 term of the Rehnquist Court may be slightly less conservative in its decision-making (though not much). That is because Justice Byron White retired at the end of the 1992-1993 term and has been replaced by Justice Ruth Bader Ginsburg, a '' more liberal Democrat than he ever was. Justice White voted with 5-4 majorities 13 times last term. In 10 of those occasions he was aligned with a predominantly conservative bloc. Presumably Justice Ginsburg would have turned some of those decisions into liberal victories, and presumably similar close calls this term will be turned around by her votes. But you never can tell.

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