As we previously noted, this term the government prevailed in 22 of the 33 (67%) cases decided by an opinion of the court.  Which judges were most likely to vote for the government and which most likely to vote for the defense?

Let’s start by looking at the four judges who sat with the court on every case:  Chief Judge Baker and Judges Erdmann, Stucky, and Ryan.  Last year, here’s how those four lined up on the continuum from most likely to vote for the government to most likely to vote for the defense:  Chief Judge Baker, Judge Stucky, Judge Ryan, and Judge Erdmann.  This year, they line up in the same order.

First, let’s go with numbers from all cases.

Chief Judge Baker voted for the government in 23 cases (70%) and with the defense in 10 (30%).  Last term he voted for the government in 72% of the cases.

Judge Stucky voted with the government in 22 cases (67%) and with the defense in 11 (33%).  Last year he voted with the government in 65% of the cases.

Judge Ryan voted with the government in 21 cases (64%) and with the defense in 12 (36%).  Last year she voted with the government in 63% of the cases.

Judge Erdmann voted with the government in 16 cases (48%) and with the defense in 17 (52%).  Last year he voted with the government in 48% of the cases.

So this year’s percentages are remarkably similar to last year’s.

Now let’s isolate the non-unanimous cases.  In the 9 cases decided by a divided vote, Chief Judge Baker voted for the government in 7 (78%).  Judge Stucky voted for the government in 6 (67%).  Judge Ryan voted for the government in 5 (56%).  And Judge Erdmann voted for the government in 0.  That’s right — in all 9 non-unanimous cases, Judge Erdmann voted for the defense.  That is reminiscent of last term, when Judge Erdmann voted for the defense in all 11 of the 3-2 cases.

As might be expected from Judges Stucky and Ryan’s middle positions, they were the two judges most likely to be in the majority.  Each dissented from only one of this term’s 33 opinions of the court, though not from the same opinion.  Judge Stucky dissented in Humphries while Judge Ryan dissented in Vela.  As we’ll see in a later post, Judge Ryan was not only in the majority, but on the majority opinion in all but one of this term’s decisions.  Chief Judge Baker was slightly more likely to vote for the majority’s result than was Judge Erdmann (who dissented most often), but was nevertheless the least likely to join the majority opinion; Chief Judge Baker dissented or concurred in the result in 12 of the 33 cases.

Now let’s add the senior judges to the mix.

Senior Judge Cox voted for the government in 10 of the 15 cases (67%) on which he sat.  Senior Judge Effron voted for the government in 11 of the 18 cases (61%) on which he sat.  But a different picture emerges if we isolate the non-unanimous cases.  Senior Judge Cox voted for the government in 4 of the 5 (80%) of the non-unanimous cases on which he sat.  Senior Judge Effron voted for the government in 1 of the 4 (25%) of the non-unanimous cases on which he sat.

CAAF decided four 3-2 cases this term on which one of the two senior judges was in the majority.  In three of those cases (Kreutzer, Fry, and Vela), Senior Judge Cox cast the deciding vote, which was for the government in each of those cases.  In the fourth of those cases (Humphries), Senior Judge Effron cast the deciding vote for the defense.  It’s interesting to consider whether (and how many) of those 3-2 cases would have gone the other way had the luck of the draw placed the other senior judge on the court the day it was argued.  (Actually, it takes the senior judge’s acceptance of an invitation from the Chief Judge to place a particular senior judge on the court for a particular oral argument.  See Art. 142(e), UCMJ.  It is apparent that Chief Judge Baker has been asking either Senior Judge Effron or Senior Judge Cox to sit with the court for a particular week’s oral arguments without regard to the particular cases being argued that week.  So, in essence, it is luck of the draw that puts a particular Senior Judge on a particular case.)

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