The Supreme Court slams right, but Scalia wants more

The highest percentage of 5-4 decisions in a decade, and conservatives win three-quarters of them.

By Tim Grieve

Published June 28, 2007 4:18PM (EDT)

With today's 5-4 decisions on school integration, price restraints and the death penalty, John Roberts' Supreme Court has reached something of a dubious milestone: By at least one count, the court has decided a higher percentage of its cases by 5-4 votes this term than in any term in the last 10 years.

This year's percentage of 5-4 decisions -- more than 30 percent -- is similar to the percentage from the court's 2004 term. But as SCOTUSblog's Ben Winograd explains, the percentage of 5-4 decisions doesn't tell the full story. In 2004, the court's liberal-leaning justices picked up the swing votes they needed to win one-third of the 5-4 decisions. This term -- with Samuel Alito on the bench in place of Sandra Day O'Connor -- the liberals' winning percentage has dropped to roughly 25 percent.

As the New York Times' Linda Greenhouse notes today, that's still not good enough for Associate Justice Antonin Scalia. Although Roberts has voted with Scalia in all but two of the court's 5-4 decisions this year, Scalia took the chief justice to task twice earlier this week for not going further than he did in decisions that swung to the right. In one case on campaign finance law and another on the government promotion of religion, Scalia accused Roberts of engaging in "faux judicial modesty" and making "meaningless and disingenuous distinctions" in order to avoid explicitly overruling precedent that Scalia would like to see gone.

Scalia has no need for such harsh words today. The court handed down three decisions in the final session of the term, and Robert, Alito, Scalia and Clarence Thomas were in complete accord on all three.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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