We previously looked at voting patterns based solely on which party each judge voted for in a given case. This post will drill a bit deeper and look at how often each judge was part of the majority opinion.
Of the 33 opinions of the court, 14 were joined by every judge who participated while 19 were accompanied by either 1 or 2 opinions concurring in the result, 1 or 2 dissents, or 1 opinion concurring in the result and 1 dissent.
2 opinions were accompanied by 2 judges concurring in the result
8 opinions were accompanied by 1 judge concurring in the result
5 opinions were accompanied by 2 judges dissenting
3 opinions were accompanied by 1 judge dissenting
1 opinion was accompanied by 1 judge concurring in the result and 1 judge dissenting
Judge Ryan was by far the most likely judge to join the majority opinion while Chief Judge Baker was by far the least likely.
First, let’s look at the 33 opinions of the court. Judge Ryan joined the majority opinion in 32 of the 33 cases. (The one exception was her joining Judge Erdmann’s dissent in Vela.)
The next most likely to join the majority opinion was Judge Stucky, who did so in 28 of 33 cases. He concurred in the result in 4 cases and dissented in 1 (Humphries).
Just behind Judge Stucky was Judge Erdmann, who joined 26 of the 33 opinions of the court. He was far more likely to dissent than to concur in the result. Judge Erdmann dissented in full or in part in 6 cases and concurred in the result in 1.
The judge who was least likely to join the opinion of the court was Chief Judge Baker, who did not join 12 out of 33 opinions of the court. He dissented in whole or in part in 5 cases and concurred in the result in 7.
Senior Judge Cox joined in the opinion of the court in all 15 cases in which he participated; Senior Judge Effron joined the opinion of the court in 16 of the 18 cases in which he participated, dissenting once and concurring in the result once.
Based on those statistics, we already see Chief Judge Baker marching to the beat of a different drummer. When we look at summary dispositions, that appearance is magnified.
Over the course of the entire term, Chief Judge Baker dissented in 130 cases in which CAAF summarily remanded to the CCA. Nine of those were Sweeney trailers, 78 were Fosler trailers, and 42 were Humphries trailers. He also dissented in an additional Humphries trailer that resulted in findings of guilty being set aside but no remand and no sentence relief. And he dissented in one summary affirmance on Fosler grounds.
In another 44 cases, Chief Judge Baker concurred in the result in Ballan trailers. So Chief Judge Baker declined to join the majority in 175 summary disposition cases as well as 12 plenary review cases.
Chief Judge Baker wasn’t the only judge who separated himself from the majority in a summary disposition case. In September 2011, Judge Stucky dissented from 5 summary disposition remands of Sweeney trailers, adhering to his Sweeney dissent in 4 of them and finding waiver in the fifth. In 3 other Sweeney trailers, he concurred in the result, noting that under the facts of those cases, the primary purpose for some of the urinalyses at issue might have been law enforcement-related.
When the current term started, now-Senior Judge Effron was still Chief Judge Effron. He served in that role before retiring after the first month of the current term. While in that capacity, he dissented in 56 summary disposition remands on Fosler grounds. After becoming a senior judge, he dissented in one more summary disposition Fosler remand — United States v. Conrady, 70 M.J. 372 (C.A.A.F. 2011), which was decided on 7 October 2011. It isn’t apparent to me why Senior Judge Effron took action on this lone Fosler trailer after he took senior status.
Despite dissenting to a total of 57 summary dispositions on Fosler grounds, Senior Judge Effron would end up supporting application of Fosler in the most significant Fosler trailer of the term: United States v. Humphries. More on that in a subsequent post.
It does not appear that either Judge Erdmann or Judge Ryan either dissented or concurred in the result in any summary disposition case this term.