Last term, there were 10 3-2 opinions with the Government prevailing in 8.  This year, counting by votes for prevailing party, there were 11 3-2 decisions with the defense prevailing in 9.

That turn-around is striking enough by itself.  What is even more surprising is that while the defense prevailed in 9 out of 11 3-2 cases, three of CAAF’s five judges (Judge Baker, Judge Stucky, and Judge Ryan) voted for the Government in more 3-2 cases than they voted for the defense.

Overall, counting all cases including 3-2 decisions, the Government prevailed in 26 cases while the defense prevailed in 22.

Returning to our focus on 3-2 cases, Judge Erdmann was the most likely to vote for the defense, doing so in all 11 3-2 splits.  He was also the judge most likely to be on the winning side in 3-2 cases, prevailing in 9 of them.

Chief Judge Effron was the next most likely to vote for the defense in a 3-2 case, doing so in 10 of the 11 3-2 splits.  (Fosler was the only 3-2 case in which Chief Judge Effron voted for the Government.)  Not surprisingly, he was the next most likely to be in the majority in a 3-2 decision.  He was in the majority in 8 of the 3-2 cases.

The remaining three judges all voted for the Government more often than for the defense in 3-2 cases. 

Judge Ryan was the third most likely to vote with the defense in a 3-2 case, doing so 4 times.  She was also the next most likely to be in the majority of a 3-2 decision.  She was in the majority in 6 of the 11 3-2 cases.

Judges Baker and Stucky both voted for the defense in 3 of the 11 3-2 cases.  And both of them were in the majority in 5 of the 11 3-2 cases.

The most likely combination of judges to form a 3-2 majority was a tie.  Chief Judge Effron, Judge Erdmann and Judge Ryan did so 3 times.  Chief Judge Effron, Judge Baker, and Judge Erdmann also did so 3 times.

The most likely combination of judges to be in dissent in a 3-2 case was also a tie.  Judges Baker and Stucky joined in 3 dissents as did Judges Stucky and Ryan.

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