Fuzzy math at the Supreme Court

The late Supreme Court Justice William Brennan famously said that the most important skill required of a justice was the ability to count to five—five being a bare majority on the nine-member court. Alas, the mathematics of Supreme Court decisions isn’t that straightforward.

Consider the decision Thursday in which the justices held that an appeals court could presume the reasonableness of a criminal sentence that fell within guidelines established by the U.S. Sentencing Commission. The New York Times described U.S. v. Rita as an 8-to-1 decision, while the L.A. Times editorial board said the court ruled "6 to 3 that appeals courts could presume that judges who sentence within the guidelines are acting reasonably."

Which numbers are right? They both are. Eight out of nine justices agreed that the perjury sentence of Victor Rita was reasonable, but only six signed the section of Justice Stephen Breyer’s setting forth the "substantive" principle that within-the-guidelines sentences can be presumed to be reasonable. This sort of mixing and matching means that court watchers have to do more than count to five.

Sometimes, even a five-vote majority can be undermined when one member of the five "writes separately." The late Justice Lewis Powell was fond of that practice. In Branzburg v. Hayes, a 1972 decision, Powell was among the five justices who ruled (Boo!) that reporters don't have a First Amendment right to protect their confidential sources. But Powell also wrote a concurring opinion that seemed to hold out hope that reporters could assert a confidentiality privilege in some circumstances. Some lawyers refer to Branzburg as a 4-1-4 decision.

My favorite splintered decision was a 1989 abortion case called Webster v. Reproductive Health Services. The mathematical complexity of the various justices’ votes is evident in this mind-numbing summary provided by the court itself:

REHNQUIST, C.J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part II-C, the opinion of the Court with respect to Parts I, II-A, and II-B, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts II-D and III, in which WHITE and KENNEDY, JJ., joined. O'CONNOR, J., p. 522, and SCALIA, J., post, p. 532, filed opinions concurring in part and concurring in the judgment. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 537. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 560.

Got that?