More on Alito’s Impact

Yesterday, in Slate’s Supreme Court “Breakfast Table” with Dahlia Lithwick, Walter Dellinger discussed Tom’s earlier SCOTUSblog post presenting a first impression of the voting statistics for the term. Professor Dellinger had the following observation:

“Alito agrees significantly more frequently with justices Scalia and Thomas than O’Connor did (almost 15 percent more often) and less frequently with the more liberal justices than she did. If you excluded from the analysis the cases decided unanimously, I’ll bet the differential would be a good bit higher.”

Professor Dellinger’s point isn’t that the spread will increase – that’s a mathematical truism. When you remove a good number of decisions where everyone agreed in full, the disagreement between liberals and conservatives necessarily increases. Instead, the point is that the rate of agreement between the justices without unanimous decisions is itself useful because it indicates how the justices vote on the more controversial cases that come before the Court.

So, we ran the numbers after removing the 37 unanimous decisions from this year and (for Justice O’Connor) the 17 unanimous decisions from OT04. The comparison is useful, though not perfect: Alito participated in a disproportionately large number of controversial cases because he was handed 3 4-4 ties to break when he joined the Court.

This data shows that the Alito/O’Connor difference in frequency of disagreements with Stevens and Breyer is 24%, and with Souter and Ginsburg it is 9-10%. The most important observation here is that, on the Court’s controversial issues, Justice Alito agreed with the conservatives an average of 15% more often than O’Connor did, and he agreed with the liberals an average of 16% less often.

Still, one result that may give conservatives slight pause, and which liberals may see as a glimmer of hope, is the data regarding which conservatives Alito agrees with most frequently. Despite Alito’s being characterized as “Scalito” by some people during his nomination hearings due to what many thought to be strong similarities between the two, he has voted more consistently with Roberts and Kennedy than with Thomas and Scalia. For example, in these non-unanimous cases, the level of agreement in the judgment between Alito and Scalia is 82%, but Alito’s agreement with Kennedy is noticeably higher, at 89%. While there is often a large ideological difference between agreeing in full and agreeing in a less complete way, especially when we consider anyone’s relationship to Justice Kennedy, the voting patterns from this term raise an important question. We can already see that Alito is a solidly conservative Justice – but how far right will the Court really go?

The complete chart for non-unanimous decisions can be found here.