Wrapping up the 2014-15 Supreme Court Term, the most significant number is four. That is the number of Justices who are over 75. Justice Ginsburg is 82; Justices Scalia and Kennedy are 79; and Justice Breyer will turn 77 in August. While Justice Stevens did not retire until he was 90, it is more likely than not that these four Justices will retire soon. Given that this group of four is split 2-2 between the conservative wing of the Supreme Court and the liberal wing of the Supreme Court (and Justice Thomas, the next oldest Justice is ten years younger than Justice Breyer), control of the Supreme Court for the next decade may depend upon what happens in the 2016 election.
The next key number is 30 out of 66. That is the number of cases that were decided by a 6-3 or a 5-4 vote. With almost half of the cases from this term within two votes of swinging the other way, moving from a 5-4 Republican majority to a 7-2 Republican majority or a 6-3 Democratic majority could alter a lot of the decisions in these close cases or result in additional cases firming up the rule recognized this past term.
Next is 13 out of 19. That is the number of 5-4 decisions in which Justice Kennedy was the deciding vote in what was otherwise a 4-4 split between the more conservative Justices and the more liberal Justices. (Justice Kennedy went with the liberals 8 times and the conservatives 5 times.)
Next is 1. That is the total number of cases in which Chief Justice Roberts, Justice Kennedy, and Justice Scalia were all in the dissent. (That case was the Confederate license plate case in which Justice Thomas joined with the four liberal Justices.) An associated number is 0. The number of cases in which Justice Ginsburg was the senior Justice in the majority. Given that the only way that Justice Ginsburg can be the senior Justice in the majority is if Justice Alito is the only conservative that joins with the liberal Justices, control of who drafts the opinions in close cases rests with the conservative wing of the court.
Next is 1 out 7. That is the number of times that Justice Thomas was assigned to write the majority opinion in a split case (a 6-3 decision in a bankruptcy case). The fact that Justice Thomas was assigned the opinion for 6 unanimous cases (compared to no more than 3 for the other Justices) is a signal of how out of touch Justice Thomas is with the legal mainstream. Nobody trusts that Justice Thomas can hold together a 5-4 majority.
Last key number is 45. That is the number of years since there was a Democratic majority on the Supreme Court. Justice Breyer could probably stick on the Supreme Court through the 2024 election if a Republican won in 2016. It would be much more difficult for Justice Ginsburg to make it through 2024. If the Republicans win in 2016, we are probably looking at 2040 or later to get a Democratic majority on the Supreme Court. As the Republicans keep on getting more and more conservatives, that will mean more Justices like Justice Alito and Justice Thomas (of the 14 cases that were 8-1 or 7-2, either Alito or Thomas were in the minority 9 times). On the other hand, a Democratic win in 2016 (particular if that Democrat looks likely to win re-election) might give a Democrat the chance to replace not just Justice Ginsburg and Justice Breyer but also Justice Kennedy and maybe Justice Scalia (who might try to hold out for 2024). A solid Democratic majority could probably reverse some of the misguided decisions of the past decade and bring an end to the Republican assault on some basic decisions of the 1960s and 70s that are recognized as fundamental by most practicing attorneys.
This post closes the book on posts about the past term. In September, I will have a post about the upcoming term. The Supreme Court was light on grants this past Spring, not even taking enough cases for a full fall docket. There are some interesting redistricting, affirmative action, and campaign finance/free speech cases in this first batch. Between now and then, I am certain that the three ring circus (a/k/a the Republican Presidential debates) will give plenty of ammunition for discussion.
