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.