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Batting 1.000:

My friend Jim Ho (a former clerk for Justice Thomas who's now an appellate lawyer at Gibson, Dunn & Crutcher) reports that Justice Kennedy is "16 for 16 in 5-4 cases so far" this Term.

Justice O'Connor, he further reports, "never had a perfect record in 5-4 cases (not countering her partial service during [the 2005 Term]." That, of course, stands to reason: She and Justice Kennedy were both swing voters then, so sometimes it was Justice Kennedy who made up the majority while she was in the minority. Now that Justice Kennedy is the one man at the middle of the Court, generally speaking as he goes so goes the majority.

Note also that now that Justice O'Connor and Chief Justice Rehnquist have left, one recurring 5-4 pattern in which Justice Kennedy was usually in the minority -- the sentencing/jury trial cases, in which Rehnquist, Kennedy, O'Connor, and Breyer routinely dissented -- may end up being a 6-3 pattern; see Cunningham v. California, the most recent such case, in which Kennedy, Breyer, and Alito dissented. So in part Justice Kennedy's perfect 5-4 record might stem from situations such as this, where his view is getting less popular on the Court and is thus being excluded from the 5-4 count. Still, one can't deny that in many cases he is the Justice to watch. SCOTUSblog's StatPack has more details. In 7 of the 16 cases, Kennedy joined the four generally more conservative Justices, in 5 he joined the four generally more liberal Justices, and in 4 the Court split in other ways.

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Still Batting 1.000:

I'm on a family trip this week, and I'll blog only rarely (though I hope to be able to put up a few posts about Morse v. Frederick, the K-12 student speech case).

In the meantime, though, I thought I'd pass along my friend Jim Ho's observation that, after 20 5-4 cases this Term, Justice Kennedy is still batting 1.000 -- he's been in the majority in all 20.

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Justice Kennedy in Majority in All 24 5-4 Cases This Term:

Is this the first time any Justice has had such a tally? SCOTUSblog's SuperStatPack also reports that he was in the dissent in only 2 of the 71 cases in which he participated — is that, too, a record, at least in recent years?

Note that the 24 5-4 cases came out with Kennedy joining the four conservatives 13 times, the four liberals 6 times, and no easily identifiable bloc 5 times. Thanks again to Jim Ho of Gibson, Dunn & Crutcher for first raising this point to me, when Kennedy was merely 16 for 16.

Related Posts (on one page):

  1. SCOTUSblog on Justice Kennedy's Term:
  2. Justice Kennedy in Majority in All 24 5-4 Cases This Term:
  3. Still Batting 1.000:
  4. Batting 1.000:
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SCOTUSblog on Justice Kennedy's Term:

Jason Harrow (SCOTUSblog) tells us how unusual Justice Kennedy's 97% batting average is. (Kennedy was in the minority in only 2 of the 71 cases he participated in this Term.)

Even Justice O'Connor, whom some used to refer to as the "most powerful woman in the world" due to her position in the center of the Court for many years, never had a Term like this. Her most successful Term was OT03, when she was in the minority five times and wrote two dissents; still, in that Term, 4 of her 5 dissenting votes were cast in 5-4 cases (there were 19 5-4's in OT03).....

One must look way back in the Court's history to find any single Term where one Justice had comparable success. Justice Kennedy's two dissenting votes tied Justice Brennan's output in October Term 1968; with a larger caseload back then, though, Justice Brennan's feat that Term is arguably more impressive. Still, one must go further back to Justice Byron White's October Term 1964 to find a circumstance where a Justice bested Kennedy and dissented only once over the course of a full Term, with no extenuating circumstances such as justice turnover (which can lead to misleading numbers).

The bottom line is that, by most measures, Justice Kennedy's October Term 2006 has been the most successful Term by a single justice in roughly 40 years.

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