The Fictional SCOTUS Standard 5-4 Split

I was reading an article today (McCain's op-ed on Kagan, if you're interested) when I came across an interesting user comment from "obtusegoose":

We all know that in 95% of the cases, the court is split down the middle 5-4 or 4-5.

One comment on an op-ed is hardly a big deal, but I get the impression that this is a common misconception. Or in his or her words "we all know" it.

Just one problem: It's wrong. Really wrong. SCOTUSblog provides us with a great stat-pack on Supreme Court decisions. As page 4 indicates the breakdown for OT09 (aka "this year") is as follows:

• 9-0 - 47%
• 8-1 - 9%
• 7-2 - 15%
• 6-3 - 10%
• 5-4 - 19%

Fewer than 1 in 5 Supreme Court decisions was a 5-4 split this term. And even that's misleading. For example, McDonald v. City of Chicago counts as a 5-4 but it was actually a 4-1-4 with Justice Thomas applying a different legal theory (Privileges or Immunities) than the others (Due Process). It also counts two 5-3 decisions because of the author's belief that they "would have split that way."

Meanwhile, nearly half of the decisions were unanimous! In fact, looking back at all of the years on that page (OT06, 07, and 08) - there were more unanimous decisions than 5-4 splits every year! Sure, there are big issues that we can accurately predict will come down 5-4, but the truth of the matter is that those cases are in the minority.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.