Unusual SCOTUS Line-ups

When it comes to civil procedure, the Supreme Court has had its share of sharply divided 5-4 decisions. In many cases, we get the voting alignment attitudinalists would expect: Iqbal, Wal-Mart, Concepcion, Comcast, Clapper v. Amnesty Int’l, Genesis v. Symczyk, to name some recent examples.

Sometimes, though, the Justices split in surprising ways. This Term’s decision in Dart Cherokee divided 5-4 over the whether (and by what standard) the Supreme Court could review a Court of Appeals’ refusal to hear a discretionary appeal under the Class Action Fairness Act. The majority—Roberts, Ginsburg, Breyer, Alito, and Sotomayor—concluded that review was proper. Scalia, Kennedy, Thomas, and Kagan dissented.

Another intriguing 5-4 split was Shady Grove. After analyzing Erie, FRCP 23, and the Rules Enabling Act, the majority concluded that federal courts were not bound by a state-law prohibition on certain kinds of class actions, even though Shady Grove was a diversity case arising under state law. In the majority were Roberts, Stevens, Scalia, Thomas, and Sotomayor. The dissenters were Kennedy, Ginsburg, Breyer, and Alito.

I’ve written elsewhere about why a case like Shady Grove might have generated such an unusual line-up. But the Shady Grove split also has a fascinating (if trivial) feature that I don’t recall seeing in any other Supreme Court decision. All of the Justices whose last names were in the second half of the alphabet were on one side, and all of the Justices whose last names were in the first half of the alphabet were on the other. I can’t think of an easy way to confirm whether this sort of voting pattern has ever happened before, so I figured I’d take advantage of my time on PrawfsBlawg to crowd-source it. Are readers aware of any other cases where the Court has split 5-4 along alphabetical lines?