Today’s L.A. Times editorial on Justice O’Connor opens with this statement:
One fact sums up Justice Sandra Day O’Connor’s pivotal role on the Supreme Court and the enormity of her resignation — she alone was in the majority of every one of the court’s 13 5-4 decisions this last term.
Wow. That’s really impressive. Except for one small problem . . . there were 24 5-4 decisions this Term, not 13 — and Justice O’Connor was in the minority in quite a few of those cases. Let’s take a few of the more prominent examples:
Justice O’Connor dissented from the decision in Granholm v. Heald, a 5-4 decision regarding interstate shipments of wine. The majority consisted of Justices Kennedy, Scalia, Souter, Ginsburg, and Breyer.
Justice O’Connor dissented from the decision in Kelo v. City of New London, a 5-4 decision relating to eminent domain. The majority consisted of Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer.
Justice O’Connor dissented from the decision in Roper v. Simmons, a 5-4 decision striking down the death penalty for juveniles. The majority consisted of Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer.
Justice O’Connor dissented from the decision in Medellín v. Dretke, a 5-4 decision that refused to consider a death row prisoner’s claim under the Vienna Convention. The opinion was a per curiam decision; Justice O’Connor’s dissent was joined by Justices Stevens, Souter, and Breyer.
Justice O’Connor dissented from Part I of the decision in U.S. v. Booker, a 5-4 decision holding that the Federal Sentencing Guidelines are unconstitutional unless they are treated as merely advisory in nature. The majority in Part I of Booker consisted of Justices Stevens, Scalia, Souter, Thomas, and Ginsburg.
In this Term’s 5-4 decisions, Justices Souter and Scalia were in the majority in 15 of 24 decisions. Justices O’Connor and Ginsburg were each in the majority 14 times, while Justices Kennedy and Breyer were in the majority 13 times. Justice Stevens was in the majority 12 times and Chief Justice Rehnquist 11 times.
This is quite a bit different from the pronouncement at the head of today’s editorial, no? I guess the obvious question is: do David Shaw’s “four experienced Times editors” review editorials too?
It will be interesting to see how they word this correction . . .
(Thanks to Xrlq for inspiring this post.)
UPDATE: In comments, Volokh Co-Conspirator Orin Kerr suggests that The Times may have accidentally used statistics from the 2002-2003 Term, rather than the 2004-2005 Term. Fair enough. [UPDATE to the UPDATE: Not so fast, Professor Kerr! Antimedia points out in the comments that Green Tree v. Bazzle was a 5-4 decision rendered during the October 2002 term (decided June 23, 2003) with O'Connor dissenting. So the L.A. Times can't use Professor Kerr's argument as an excuse. Nice catch, Antimedia!]
Nobody is suggesting that Justice O’Connor hasn’t been an important swing vote, but she wasn’t always a swing vote — and she was not the only one by a longshot. (Coincidentally enough, this is a point that Professor Kerr makes today — in the L.A. Times!)
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UPDATE x3: Prof. Kerr e-mails to clarify his comment:
As for the Green Tree case pointed out in your comments, which is a October Term 2002 case, I don’t know whether the LA Times was counting cases with no majority opinions. Also, I don’t know if they were right — I just assume that they meant the 2002 term as that term is the one that is generally understood to have that # of 5-4 cases.
The letter to Readers’ Representative Jamie Gold has been sent, so if that’s their explanation, we’ll know soon enough . . .
UPDATE x4: More thoughts on why this is important here.
UPDATE x5: A commenter points to an analysis that shows 17 rather than 24 5-4 decisions. It doesn’t make the L.A. Times any more correct, but it may be worth noting.