MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Which justice was the closest to Justice Kennedy?

This term, it was Roberts; #2 was Gorsuch

Jonathan has a nice post on the end of the "Kennedy Court." Just as Justice Kennedy replaced Justice O'Connor as the "swing" justice, it seems reasonable to anticipate that Chief Justice Roberts will be replacing Justice Kennedy as the new swing vote--a role he's likely to be pretty happy with. If it's true that whoever is the swing justice tends to have the most power and influence, then this change could truly mark the beginning of a genuine "Roberts Court."

However, before everyone spins themselves into a tizzy about the departure of Justice Kennedy, the chart below from SCOTUSBlog on the voting relationships of the Justices this term is worth examining. It shows a number of interesting relationships among the Justices.

  • Of all the Justices, the ones who voted most frequently together are Justices Ginsburg and Sotomayor (at 96%); after them it is Justices Breyer & Kagan (at 95%).
  • On the conservative side, the Justices who voted most frequently together were Justices Thomas and Alito (at 94%)
  • The Justice who voted most often with Justice Kennedy was Chief Justice Roberts (at 90%).
  • The Justice who was next closest to Justice Kennedy was his former law clerk Justice Gorsuch (at 85%).
  • Indeed, Justice Gorsuch voted more closely to Justice Kennedy than to any other Justice: Roberts, Thomas, and Alito all tied for second at 82%.

Of course, these are stats from one term only. Justice Kennedy may well have been more "conservative" in his voting this year than in prior years given on the docket. But if they are measuring something that is real--and they may not--this voting pattern hints that

  • The Court may not be pulled as sharply to the right--however you determine this--by the appointment of another Justice Gorsuch as some critics will allege. (Which of the judges on Trump's list is closest to Gorsuch is another matter. None are likely to be clone.)
  • A Justice who is committed to originalism may reach many of the same outcomes as a Justice as seemingly eclectic in his methodology as Justice Kennedy.
  • While Justice Kennedy did not call himself an originalist and did not generally employ originalists/formalist/textualist methodology, his own instincts may have comported pretty closely--and with significant exceptions--with conclusions yielded by originalism. (This may reflect my own views of the gravitational force of originalism.)
  • Finally, the simple conservative-progressive continuum may be too simplistic to accurately capture a more complex reality.

In the end, the original meaning of the Constitution will not always comport with what a "conservative" would prefer to be the outcome of a given case. If that's correct, then the more faithful a Justice is to that meaning, the less his voting will conform to a purely conservative or purely progressive agenda.

FWIW: here is the chart:

Voting relationships (OT17)

Justice Agreement in full, in part, or in judgment

AMK

CT

RBG

SGB

SAA

SMS

EK

NMG

JGR

90%

79%

66%

71%

76%

65%

71%

82%

AMK

84%

65%

66%

81%

63%

69%

85%

CT

54%

56%

94%

50%

58%

82%

RBG

90%

51%

96%

89%

56%

SGB

53%

93%

95%

61%

SAA

45%

55%

82%

SMS

91%

53%

EK

62%

NMG

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • David Bremer||

    That chart is a good reminder of just how much unanimity there really is on the court. Although divisive cases get all the attention, except for one pair (Alito and Sotomayor) voted on the same side more at least half the time.

  • Martinned||

    IIRC, SCOTUSBlog also do a version of this table for each type of split (9-0, 8-1, 7-2, 6-3, 5-4) separately. (At least they do for their end-of-term stats pack.) That seems like a more useful metric.

  • ReaderY||

    A difficulty with these sorts of analyses is that they don't weight for importance. Realistically, a Justice who is substantially to the right of Kennedy on a very small number of issues and cases - matters like abortion and homosexuality, for example - would be regarded as having made a sea change in the court even if agreeing with Justice Kennedy on 99% if he court's cases.

  • ScottK||

    Interesting. It does seem to confirm that CT and SAA are nuts from the same shell in that they like each other but not the rest very much.

  • David Lawson||

    I was surprised at the lack of disagreement, which at its starkest was 45%.

    However, this doesn't include certiorari votes, which might provide even more useful information.

  • Careless||

    Anyone want to explain how Roberts voted with Kennedy the most, but Gorsuch voted more closely?

  • doshei||

    "Finally, the simple conservative-progressive continuum may be too simplistic to accurately capture a more complex reality."

    How do you think the results fit in instead of a bi-poar conservative-progressive continuum you ad in a Libertarian axis? I think Gorsuch and Kennedy have a stronger Libertarian flavor than the other Justices and are better understood on that axis.

  • Listo Lyman||

    I analyzed this macro chart on a macro level to identify the most extreme. I define extreme as agreement with a fellow justice =90%. Here is the breakdown.
    Sotomayor - 6
    Alito, Breyer, Thomas - 5
    Ginsberg, Kagan - 4
    Gosuch - 2
    Roberts, Kennedy - 1

    The 3 most compromising are Republican-appointed which includes Kennedy. 4 of the least-compromising are Democrat-appointed. Sotomayor, the most extreme, was confirmed with 67 votes. Gorsch, one of the most compromising, received 54. I predict the next justice will be a woman, will join the least-compromising group, and will be confirmed with less than 55 votes. Also, Roberts will become the new swing voter.

  • Listo Lyman||

    I analyzed this macro chart on a macro level to identify the most extreme. I define extreme as agreement with a fellow justice =90%. Here is the breakdown.
    Sotomayor - 6
    Alito, Breyer, Thomas - 5
    Ginsberg, Kagan - 4
    Gosuch - 2
    Roberts, Kennedy - 1

    The 3 most compromising are Republican-appointed which includes Kennedy. 4 of the least-compromising are Democrat-appointed. Sotomayor, the most extreme, was confirmed with 67 votes. Gorsch, one of the most compromising, received 54. I predict the next justice will be a woman, will join the least-compromising group, and will be confirmed with less than 55 votes. Also, Roberts will become the new swing voter.

  • Listo Lyman||

    I analyzed this macro chart on a macro level to identify the most extreme. I define extreme as agreement with a fellow justice less that 60% or greater than 90%. Here is the breakdown.
    Sotomayor - 6
    Alito, Breyer, Thomas - 5
    Ginsberg, Kagan - 4
    Gosuch - 2
    Roberts, Kennedy - 1

    The 3 most compromising are Republican-appointed which includes Kennedy. 4 of the least-compromising are Democrat-appointed. Sotomayor, the most extreme, was confirmed with 67 votes. Gorsch, one of the most compromising, received 54. I predict the next justice will be a woman, will join the least-compromising group, and will be confirmed with less than 55 votes. Also, Roberts will become the new swing voter.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online