1986-1987: Voting Patterns

In Voting Patterns posts, I will provide, as the name implies, a discussion of the more salient voting patterns among the Justices during the term. Unlike Scotusblog, or Harvard Law Review, I will not use hard numbers and statistics, because there’s just too many judgment calls for me to feel comfortable with it. [Those who study voting patterns in Congress have it much easier – for every vote, it’s either a ‘Nay’ or ‘Yea’ (with ‘Present’ cropping up on rare occasion). A Congressmen can never ‘Concur in part, concur in judgment in part, and dissent in part’]

For all of its failures, it was a Court which was far more likely to lean toward Rehnquist rather than Brennan and Marshall. Rehnquist was able to hold his five man team together in most cases, and quite often he even had the pleasure of a sixth vote from Blackmun or Stevens.

Notably, apart from 9-0, the single most common voting alignment by far was 5-4, with Brennan, Marshall, Blackmun, and Stevens in dissent. As the last post showed, this occurred 24 times. After these two alignments, there’s basically a four way tie for third place, with each having happened about 9 or 10 times. Three of these four were bad news for the liberals. They were 6-3, Brennan/Marshall/Blackmun dissenting; 6-3, Brennan/Marshall/Stevens dissenting; and 7-2, Brennan/Marshall dissenting.

The fourth alignment to happen about 9 or 10 times was 5-4, with Rehnquist, White, O’Connor, and Scalia dissenting. Powell was thus, by a landslide, the greatest snake in the conservative garden. And he had a nasty tendency to defect in cases regarding high profile cultural issues. Stuff like the death penalty, affirmative action, immigration, and jokes about the president being murdered.

No other combination of Justices appears to have materialized more than about 4 or 5 times, which works out to a frequency of roughly 3%. This doesn’t mean that the five conservatives (except for Powell) were rock solid. They just found lots of relatively rare combinations to lose with. White, rather than Powell, was the villain in 3 or 4 of the 5-4 losses (including the horrible DeBenedictis case). Scalia, believe it or not, gave the four liberals three wins, and he joined three liberals in dissent in several other cases. O’Connor’s defections in 5-4 cases tended to come only when they were nullified by Blackmun or Stevens. As for Rehnquist… much like Brennan and Marshall, he simply didn’t defect.

Rehnquist/White/Scalia, and Rehnquist/Powell/O’Connor were the most relatively common 6-3 lineups where the conservatives lost. As would always be a trend, it was again the high profile cultural issues where Powell and O’Connor tended to leave the conservatives high and dry. Surprisingly, the 6-3 lineup with Rehnquist/O’Connor/Scalia in dissent only happened twice, and while both rulings were aggravating activism, both were also fairly minor issues.

A welcome phenomenon was Blackmun or Stevens bailing the conservatives out. It happened about a dozen times with several different alignments. To the extent that any trends can be found, Stevens tended to come to the rescue when O’Connor defected, and Blackmun tended to save the day when Scalia defected.

As I have noted before, there really doesn’t seem to be much rhyme or reason to Blackmun and Stevens. It almost seems random how they vote on a very broad swath of cases. They don’t agree as much as you’d think they would, and I can’t even say with certainty which one is slightly more liberal (though I lean toward Blackmun).

Scalia was the Justice most likely to stand alone. Although he almost always would concur in judgment, he loved writing opinions, or sections of opinions, that no one else had the guts to join. Stevens was also prone to take lonely stands, but his were more often in dissent.

Looking at the statistics that other sources have compiled, it seems like White really swung toward the right in this term. My guess is that Rehnquist should get much of the credit for this. Rehnquist and White had very similar voting records, and in all probability Rehnquist used his position as Chief Justice to keep White close.

If I were to line everyone up from left to right, it would look something like this: Marshall, Brennan, [good amount of space], Blackmun, Stevens, [good amount of space], Powell, [good amount of space], White, O’Connor, Scalia, [good amount of space], Rehnquist.

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