In today’s Smith v. Massachusetts, five Justices (Justice Scalia, joined by Stevens, O’Connor, Souter, and Thomas) took the broader view of the Double Jeopardy Clause, and four dissenters (Justice Ginsburg, joined by the Chief, Kennedy, and Breyer) took the narrower view.
I can’t recall any other Supreme Court case with precisely this lineup. There have been similar lineups; consider part of the Booker/Fanfan Sentencing Guidelines decision, in which Ginsburg, the Chief, O’Connor, Kennedy, and Breyer were in the majority, and Scalia, Stevens, Souter, and Thomas were in the dissent. But I don’t remember precisely this lineup. If you can think of a case in which the Justices split exactly this way, please e-mail me at volokh at law.ucla.edu.
UPDATE: Anton Metlitsky of the Harvard Law Review writes that he “just looked through the Harvard Law Review’s Rehnquist Court Statistics issue that we published last November. At least within the past ten years (since Breyer took his seat), Smith is the first occurrence of a majority made up of Stevens, O’Connor, Scalia, Souter, and Thomas. See 118 Harv. L. Rev. 510, 521 (2004).” Dierk Meierbachtol echoes this, though seemingly based on less conclusive research. Meierbachtol also writes:
This got me thinking about other combinations we’ve never seen on this iteration of the Rehnquist Court. For example, my LEXIS name search shows that Stevens, O’Connor, Scalia, Thomas, and Breyer have never formed a five-justice majority. And neither have Stevens, O’Connor, Scalia, Thomas, and Ginsburg.
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