Today I was looking at a New York Times article, which listed how the justices voted on "major" cases this session, and one thing struck me -- on each and every case all four so-called liberal Justices (Ginsburg, Breyer, Kagan and Sotomayor) voted in the MAJORITY on each and every case, sometimes joined (of course) by 1-5 other justices, most frequently Kennedy, Roberts.  The three most conservative justices (Thomas, Scalia, Alito) were least often on these cases.

This led me to think about the forthcoming and very important SCOTUS decision on "King v. Burwell", which challenges the right to offer subsidies to lower-income persons in the exchanges run by the federal government. I will not review the aspects of the case here, but the 'SCOTUSblog" has much detail about the case.

But what strikes me about the data the NYT cited is that the four liberal justices seem to have figured out ways to work out with their colleagues to always be in the majority on key decisions, suggesting they negotiate with them, much as they negotiated with Chief Justice Roberts to secure his key fifth vote in the major challenge to "Obamacare" decided in 2011.

I checked to look at ALL the decisions the Court has made this year, and found a website (supremecourtreview.com) and database that I believe contains all the decisions and records how the Justices voted. Note what the graph below shows:

  • All four liberal justices (Breyer, Ginsburg, Kagan, Sotomayor) joined the majority well over 85% of time: 

    • Sotomayor and Breyer 94% of the time, 

    • Ginsburg 90% of the time, and 

    • Kagan 88% of the time;

  • in contrast, Thomas was in the majority 60% of the time, Scalia 68% of the time, Alito 78% of the time, Kennedy and Roberts 84% of the time. 

Given that essentially everyone believes these four liberal justices will decide the "King" case on the side of the administration, and rule against the plaintiffs, then this seems to bode badly for the plaintiffs, as it seems very unlikely they will end up in the minority for essentially the first time this SCOTUS session.  Again this is probably because the liberal justices work with at least one other justice to craft an opinion they can endorse.




It is worth noting, and observing that the behavior of the justices has changed a lot this session, compared to last.  In the 2014 session, the conservative justices were most often concurring on opinions (see graph): the five conservative justices concurred on majority opinions 80% of the time or more. However, even then the four liberal justices were often voting with the majority: between 73 and 79% of the time.