Friday, September 18, 2009

Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining? (Part 2)

Conservatives vs. Liberals
Writing & Voting in Dissent
The contrast is stark. Conservative versus liberal Justices. The number of dissents last term. Both writing dissents and casting votes in dissent. The conservative Justices didn't dissent nearly as frequently as the liberal Justices did. They apparently had much less to complain about. Chief Justice Roberts, and Justices Scalia, Thomas and Alito were apparently much happier with the Court's decisions than were Justices Stevens, Souter, Ginsburg and Breyer.

As reflected quite vividly in Graph 1, the liberal Justices authored nearly twice as many dissenting opinions as did the conservatives. And the liberal Justices cast more than 1 and 1/2 times as many votes in dissent as did the conservatives. Total dissenting opinions: liberals 54, conservatives 29. Total dissenting votes: liberals 105, conservatives 66.

So it's clear who's winning the battle of dissents. But, of course, that also means it's clear who must be winning the battle of majority opinions. Winning the battle of decisions. Winning the battle of winning at the Court. The conservatives.

Back to the flip side for the liberals. They were dissenting much more. Complaining much more about the Court's decisions. Losing much more. Without looking at a single individual decision, these numbers say a lot about how the liberals and the conservatives fared last term. About the state of the Court and its case law last term.

In the previous post on New York Court Watcher, we looked at the number of dissenting opinions written last term by each Justice. (See Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining?, Sept. 15, 2009.) Now let's look at the number of total dissenting votes for each Justice--whether writing a dissenting opinion or joining one. We'll take the graphs from the last post, which depicted the number of dissents written by each Justice, and add a depiction of the total dissenting votes cast by each of them.

Who's Dissenting & How Often?
Number of Dissents Written & Voted

Immediately apparent from Graph 2 is the contrast between the 2 senior Justices. As we already saw in the last post, liberal Justice Stevens, the Court's Senior Associate Justice, wrote 11 more dissenting opinions than conservative Chief Justice Roberts. As additionally depicted in this graph, we see that Stevens cast 15 more total dissenting votes than did Roberts. 31 to 16. Virtually twice as many.

Also, the Justices whose dissenting frequency comes closest to Stevens's are 2 other liberals, Souter and Ginsburg. Each cast a total of 25 dissenting votes. Next comes the remaining liberal on the Court, Justice Breyer, with 24.

In short, the Court's 4 liberal Justices were the Court's 4 most frequently dissenting voters. This corroborates what we just saw regarding the total combined liberal dissenting votes versus the total combined such votes of the conservatives. And it underscores even further what we saw in the last post regarding the number of dissenting opinions by the 4 liberals versus the number for the 4 conservatives.

Let's reorganize Graph 2 to place the Justices in order of their number of dissenting votes, from low to high--in ascending order of dissenting-vote frequency, to state it more primly. As with the reorganized graph in the last post, this one offers little solace for liberals and much welcome news for conservatives.

Who's Dissenting & How Often?
Number of Dissents Written & Voted

(in ascending order of dissenting votes)
Reading Graph 3 from the far left shows Justice Kennedy--again, the Court's usual swing voter--not surprisingly with the fewest dissenting votes. We already saw that he had written the fewest dissenting opinions. Now we see that the total number of votes he cast in dissent, 6, was also the lowest among the Justices.

Following Kennedy, with the next lowest total of dissenting votes, are Roberts, Scalia and Thomas--each with 16. Then Alito with just 2 more. These Justices, the 4 who comprise the Court's conservative wing, are the ones who, except for Kennedy, cast the fewest dissenting votes.

Let's put it another way. Every conservative Justice voted in dissent fewer times than any of the liberals. Breyer cast 24 dissenting votes; Souter and Ginsburg 25 each; Stevens 31. Every liberal Justice voted in dissent more times than any of the conservatives.

Combine the numbers as we did in Graph 1 above and recall: liberals 105, conservatives 66. The liberals are winning big in the number of dissenting votes. That translates into the conservatives winning big in majority votes and, in turn, decisions of the Court.

In future posts we'll take a look at the decisions themselves. The numbers, the rulings, and the implications.