The Federalist Society's report from the ABA Convention included this partial summary of one panel:

Supreme Court Review

Ken Starr was one of three panelists at the ABA convention's Supreme Court Review. He was joined by Yale Professor Drew Days and Susan Bandes of Chicago Law School. The panel summarized and commented on the biggest cases to face the Supreme Court this year. "The conservative majority held together on only five of the twenty-five major cases," said Prof. Days. The panel seemed in agreement with Starr that the explanation for this could be found in the ascendancy of John Paul Stevens.

Leave aside the incongruity that Orin mentioned a few weeks ago of referring to a "conservative majority" that prevailed in only 5 out of 25 major cases. It strikes me that this past term might provide some raw data for an interesting empirical test. It is often wondered whether the Chief Justice is somehow "more important" than the other justices in the sense that for procedural or other reasons the Chief may have greater influence over outcomes than just one vote. Others say no, that the Chief has no greater influence than anyone else.

Here's an empirical test that might be interesting--compare the outcomes of major cases over which Rehnquist presided and deliberated versus those cases over which Stevens served as Acting Chief. I have no idea what this would find, but it might be a revealing test of whether the Chief has any sort of disproportionate influence compared to others. It is possible that Chief Justice Rehnquist's absence from the bench in some major cases explains the failure of the so-called "conservative majority" to hold together during the past term?

Has anyone collected data from the past term that cross-references outcomes in cases with whether Rehquist or Stevens presided? (Sounds like a good project for some summer associates in an appellate shop somewhere...).

As an example, I have heard at least one veteran court-watcher speculate that perhaps the balance in Kelo could perhaps have been swung by the fact that Rehnquist did not participate, thereby enabling Stevens to preside over the internal deliberations and to perhaps exercise agenda control and swing Kennedy. As Orin sagely observed after the case came out, O'Connor's Kelo dissent reads like it may have started as a majority opinion, but then Kennedy switched over to and O'Connor had the dissent instead.

A couple of weeks ago I suggested a research project on using Rehnquist's periodic absences from the bench this year as an opportunity to test the influence of the Chief Justice by comparing results in cases over which Rehnquist presided versus those over which Stevens presided as acting Chief to see whether there is any systematic differences in the outcomes depending on the presiding Chief.

Professor Frank Cross of Texas has decided to take up the challenge and is going to do some empirical work along these lines. The first step is to try to determine the exact dates and cases over which Stevens presided during the past term and those arguments over which Rehnquist presided. Does anyone have that information, or does anyone know where that information can be found and coded easily? This seems like something that an appellate shop somewhere may have collected already if they are willing to share it.

If you have any Comments you can post them here or contact Frank directly at University of Texas.