Do they? What percentage of issues?
He's already pointed to the unusual order in
Zubik. Justice Kagan claims that the justices are "
working really hard" to avoid deadlocks--an unnecessary effort when one side has the upper hand. And we've seen for decades now how partisan the confirmation process has become, all because Republicans and Democrats are fighting over which side gets the upper hand. For instance, until Justice Alito's confirmation, the two justices who were confirmed with the most No votes were Justice Thomas (48 No) and Chief Justice Rehnquist (33). Justices Alito (42) and Kagan (37) both received more No votes than Rehnquist, and Justice Sotomayor received only two less than him (31).
Segall's suggestion is a way to cut back on the partisan bickering over confirmations and encourage the Court to continue doing what Kagan says they're doing now--"working really hard" to find a consensus.