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Friday, March 20, 2015

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: IqbalWal-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?

Posted by Adam Steinman on March 20, 2015 at 04:27 PM in Civil Procedure | Permalink


Good find, Scott! The breakdown definitely fits, though some empiricists might treat Jones as 9-0 because everyone agrees on the ultimate result in that case.

Posted by: Adam | Mar 24, 2015 3:00:26 PM

United States v. Jones, the GPS case from 2012?

Majority Scalia, joined by Roberts, Kennedy, Thomas, Sotomayor
Concurrence Sotomayor
Concurrence Alito, joined by Ginsburg, Breyer, Kagan

Fourth Amendment cases and sentencing cases often have unusual lineups.

PS: Had to sing my ABCs to be sure...

Posted by: Scott Dodson | Mar 23, 2015 3:57:49 PM

Good point, BMS. It's the 5-4 alphabetical splits that seem especially rare.

Posted by: Adam | Mar 23, 2015 12:15:03 PM

Any time that Alito or Thomas files a solo dissent, it is in some sense an alphabetical split.

Posted by: BMS | Mar 23, 2015 11:32:09 AM

If the comment meant that it was a somewhat strange match-up ideologically, okay, though there are others like that. Scalia/Thomas at times joins liberals (though one might split off) on some issues. Oyez.com provides Thomas giving the opinion announcement. Note the three liberals split from the opinion on one point.

Posted by: Joe | Mar 21, 2015 11:49:41 AM

How does that work?

Posted by: Joe | Mar 20, 2015 11:10:17 PM

Magwood v Patterson (death penalty habeas case re availability of successive petitions). Thomas joined by Stevens Scalia Breyer Sotomayor. Dissent Kennedy with Roberts Ginsburg and alito.

Posted by: Alexandr | Mar 20, 2015 9:24:45 PM

Pretty close, though. Nice find, Comment2!

Posted by: Adam | Mar 20, 2015 7:14:19 PM

No cigar, but . . . Hazelwood School Dist. v. Kuhlmeier was decided by eight Justices, who split 5-3 along alphabetical lines (O'Connor, Rehnquist, Scalia, Stevens, White in the majority; Blackmun, Brennan, Marshall in dissent; Kennedy taking no part).

Posted by: Comment2 | Mar 20, 2015 5:21:16 PM

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