Adam Feldman on EmpiricalSCOTUS takes a look at SCOTUS 2016 behavior in statistical terms. The charts are interesting, as are his conclusions:
Not only has Justice Roberts only dissented seven times, but he also only dissented multiple times from Justice Kennedy’s and Justice Breyer’s opinions. Justices Kennedy and Justice Breyer are currently considered the middle of the current eight-member Court. This may be an artifact of Justice Roberts’ attempt to build consensus among the Justices, especially in a time when the Court is often viewed as polarized and where equally divided votes leave cases without any input from the Court.
To be sure, we have seen specific patterns of polarization since Justice Scalia passed away, although the Justices’ ability to form new majority coalitions has prevented more frequent equally divided votes. Justice Thomas is far and away the most frequent dissenter since Justice Scalia’s passing. …
Source: EmpiricalSCOTUS
Several points jump out of this graph. First, Justices Thomas dissented from more than half of Justice Kennedy’s written opinions during this period. Next, Justices Thomas and Alito are dissenters in most of the instances with three or more dissents. The only other two pairs with three or more dissents are Justice Roberts from Justice Kennedy’s opinions and Justice Breyer from Justice Kagan’s decisions (Justice Thomas notably also dissented three times from Justice Alito’s opinions). While many others dissented during this period, Justices Alito and Thomas dissented in more than half of the pairs of majority author/dissenters.
The Court is in a unique position. While it is entirely possible that with an additional Justice we will see a reversion to a split Court with Justice Kennedy once again in the middle, there exists a possibility that Justices Thomas and Alito have distanced themselves from Chief Justice Roberts over the past year. If this is the case, we may see more decisions with Justices Thomas and Alito in dissent and where Judge Gorsuch (if confirmed) will have to either entrench himself within this coalition or somewhere to the left of it.
While Alito and Thomas may be moving more hardline right, it’s also possible that Roberts is moving more towards the liberal. The mass incompetency on display from the general conservative camp may cast a pall on his own conservatism; an intellectually inquisitive Justice (or really any citizen) should be observing that spectacle and attempting to understand the intellectual failures, and applying those observations to their own ideologies. Whether Alito and Thomas are actually capable of such, or are too frozen into their positions, is not clear. Roberts past behavior, though, has suggested he possesses a certain flexibility and may prefer to side with the liberals over the conservatives at unexpected moments. This also all assumes that some Justices are pillars of ideological stability.
And, of course, Adam isn’t working with huge numbers, so drawing statistical conclusions is fraught with controversy. If I may overstate the case a trifle.
