1987-1988 Voting Patterns

1987-1988 was the most understaffed Court term between 1969-1970 and 2015-2016. Only eight Justices participated in a large portion of the cases. In several instances, only seven participated. There were a few times with just six, and even one memorable occasion with only five.

As a result, the voting alignments are just as unusual as you’d expect. I counted over 70 different alignments, and about two thirds of them only happened once. The most popular alignments, by far were 8-0 (with no Kennedy) and 9-0. Roughly tied for third place, with about 10 times each, were 5-3 (no Kennedy) with Brennan, Marshall, and Blackmun dissenting, and 5-4 with Brennan, Marshall, Blackmun, and Stevens dissenting.

No other combination came up more than about 5 times. Stevens and Scalia were the Justices most likely to dissent alone, with White and Marshall not far behind, and the other five almost never resorting to it. Brennan and Marshall dissented as a lonely pair only a few times, and usually had either Stevens or Blackmun with them in their dissent.

O’Connor, strangely enough, may have been the most conservative voter during the term. There are several cases each where she dissents with just Rehnquist, just White, and just Scalia. No other Justice seemed quite so frequently in dissent with just one other.

In cases where the four liberals got a fifth vote, it was usually White who defected. He did so about half a dozen times, most notably in Mills. O’Connor did it a few times, and Rehnquist, Scalia, and Kennedy each did it once.

Speaking of Kennedy, not much can be learned about him from the cases he voted on. He’s sort of generically conservative, but that’s about it. He could usually be found wherever the bulk of the other conservative Justices were.

Stevens seemed remarkably conservative this term, casting the fifth or sixth vote for the conservative side in a large number of cases. In some instances, it might be chalked up to his desire to prevent loads of tie votes. Still, it’s interesting to see a time when he was more a ‘wild card’ with a slight leftward bent than an automatic liberal vote.

Blackmun was in some ways the opposite of Stevens. While Stevens would join conservatives to make a majority, Blackmun tended to join conservatives when they were in dissent. Unfortunately, the alignments of these dissenting votes are so random that no deeper lessons can be drawn.

A left to right lineup starts out easy, but then gets hard. Marshall is clearly most liberal, closely followed by Brennan. Blackmun is plainly in third place, with Stevens plainly in fourth. White is the most natural swing voter. But trying to rank Rehnquist, O’Connor, Scalia, and Kennedy is really hard. You could make plausible cases for almost any ranking. Signs of the awful squishiness to come from O’Connor and Kennedy in the future were minimal.

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