SCOTUSblog has published its final tally of the frequency with which the nine justices of the U.S. Supreme Court disagreed with each other in the 53 non-unanimous cases that were decided in the recently ended term. The tally indicates that Kennedy, the so-called swing justice, generally aligns with the Court’s “conservative” wing, so I placed him there, in company with Alito, Roberts, Thomas, and Scalia. The Court’s “liberal” wing, of course, comprises Breyer, Souter, Ginsburg, and Stevens.*
I then ranked the members of the Court’s two wings according to a measure of their net agreement with the other members of their respective wings. Thus:
Alito, for example, was in disagreement with his four “allies” (in non-unanimous cases) a total of 72 percent of the time (see graph below), for an average of 18 percent per ally. Alito was in disagreement with his four “opponents” a total of 272 percent of the time, for an average of 68 percent per opponent. By subtracting Alito’s average anti-“conservative” score (18 percent) from his average anti-“liberal” score (68 percent), I obtained his net average anti-“liberal” score (50 percent). Doing the same for the other four “conservatives,” I found Alito the most anti-“liberal” of the “conservatives. He was followed closely by Roberts, Thomas, and Scalia, in that order. Kennedy finished fifth by several lengths.
I applied the same method to the “liberals,” and found Breyer the least anti-“conservative” of the lot, with Souter and Ginsburg close to each other in second and third places, and Stevens a strong fourth (or first, if you root for the “liberal” camp). (The apparent arithmetic discrepancies for Thomas, Breyer, and Stevens are due to rounding.)
Thus, if you are a “conservative,” you are likely to rank the nine justices as follows: Alito, Roberts, Thomas, Scalia, Kennedy, Breyer, Souter, Ginsburg, and Stevens. (However, I would place Thomas first, because he comes closest to being a libertarian originalist.) I carried this ranking over to the following graphic, which gives a visual representation of the jurisprudential alignments in the Court’s recently completed term:
It is hard to see how Sotomayor’s ascendancy to the Court will change outcomes. She may be more assertive than Souter, but I would expect that to work against her in dealings with Alito, Roberts, Thomas, and Scalia. Nor would I expect Kennedy — who seems to pride himself on being the court’s “moderate conservative” — to respond well to Sotomayor’s reputedly “sharp elbows.” Even Kennedy found himself at odds with Stevens 60 percent of the time. And it seems likely that Sotomayor will vote with Stevens far more often than not — in spite of her convenient conversion to judicial restraint during her recent testimony before the Senate Judiciary Committee.
* It would be more accurate to cal Alito, Roberts, and Scalia right-statists, with minarchistic tendencies; Thomas, a right-minarchist; and the rest, left-statists with varying degrees of preference for slavery at home and surrender abroad. (See this post for an explanation of the labels used in the preceding sentence.)