One of the most remarkable things about the 2009 term — other than the small number of cases that CAAF decided — was the imbalance in opinion writing. CAAF decided 43 cases by formal opinion. Two of those were issued per curiam. Another two of those (Smith, 68 M.J. 445, and Cowgill, 68 M.J. 388) didn’t have an opinion of the court. That leaves 39 opinions of the court to divvy up among CAAF’s five judges. But instead of four judges writing eight opinions and one writing seven, here’s what we had:
Judge Erdmann: 10
Judge Stucky: 9
Judge Ryan: 9
Judge Baker: 6
Chief Judge Effron: 5
This term saw an increase in polarized outcomes compared to last term; 9 of CAAF’s 43 formal opinions (21%) were resolved by 3-2 or 2-1-2 votes, up from 15% last year, though the percentage is almost the same as that from the term before that. Judge Stucky was the most likely to be in the majority in a 3-2 outcome (8/9). (As we’ll see, Judge Stucky was in dissent only twice all this term.) Judge Erdmann was by far the least likely to be on the winning side of a 3-2 opinion (2/9). Judge Baker was second most likely to be in the majority of a 3/2 opinion (7/9), while Chief Judge Effron and Judge Ryan were tied for third place (5/9).
As those numbers would suggest, Judge Erdmann cast the most dissenting votes: 7. Chief Judge Effron and Judge Baker were tied for second place with 5. Judge Ryan dissented 4 times while, as noted above, Judge Stucky dissenting only twice. But Judge Baker was the most likely judge to cast a sole dissenting vote, with 3. Judge Erdmann, who dissented the most, never dissented alone. Nor did Judge Ryan. Chief Judge Effron and Judge Stucky each dissented alone once.
Judge Baker was the most likely to write a separate concurring opinion (5), with Judge Stucky second (3). Chief Judge Effron wrote 2 while neither Judge Erdmann nor Judge Ryan penned a concurrence.
Remarkably, while Judge Erdmann cast the most dissenting votes, he tied with Judge Ryan for writing the fewest dissenting opinions — 2. Chief Judge Effron and Judge Baker tied for writing the most dissenting opinions — 5 each.
And now for the pairings of which judges are most to least likely to vote together, with the number of times those two judges voted together in non-unanimous cases indicated in parentheses [note that for this purpose, two judges are considered to have voted together if they supported the same outcome, even if they issued or joined separate opinions reaching that result]:
1. Judge Stucky & Judge Ryan (10/13)
2. Judge Erdmann & Judge Ryan (9/13)
3. Chief Judge Effron & Judge Erdmann (8/13)
4. [TIE] Chief Judge Effron & Judge Stucky (7/13)
Judge Baker & Judge Stucky (7/13)
6. Chief Judge Effron & Judge Baker (6/13)
7. [TIE] Chief Judge Effron and Judge Ryan (5/13)
Judge Baker & Judge Ryan (5/13)
Judge Erdmann & Judge Stucky (5/13)
10. Judge Baker & Judge Erdmann (3/13)
These pairings are fairly consistent with last year’s with two principal exceptions: the Judge Stucky-Judge Ryan pairing moved quite a ways up the list while the Chief Judge Effron-Judge Baker pairing moved quite a ways down.