The Volokh Conspiracy

In a recent post, Josh Blackman writes that "Justice Barrett is solidifying herself as the swing Justice," citing a recent analysis by Adam Feldman of Legalytics. As someone who follows the Court quite closely, this did not seem right to me. It turns out my skepticism was warranted.

The primary point of Feldman's analysis, "The Myth of the Modern Swing Vote," is that there is no Justice Kennedy-style median justice on the current court. Rather, there is a more complex dynamic among the Court's six conservative justices that results in shifting coalitions depending upon the subject-matter and salience of the case at hand. But even with that caveat, and if one solely wishes to focus on which conservative justice's vote is most often in play to form a majority with multiple liberal justices, Feldman's analysis does not point to Justice Barrett. Indeed, it expressly rejects that position.

On the "central question" of "Which conservative justices act as swing votes—and under what conditions?" Feldman writes:

To answer this, I analyzed each instance where a conservative justice—Roberts, Kavanaugh, Barrett, Gorsuch, Alito, or Thomas—joined at least two liberal colleagues (Breyer, Sotomayor, Kagan, or Jackson) in forming the majority in a 5–4 or 6–3 decision. These are the votes that shift outcomes and signal ideological movement.

The results were clear—and revealing.

Chief Justice John Roberts was the most frequent swing vote, joining liberal-majority coalitions 31 times. Justice Brett Kavanaugh was close behind with 30 swings, followed by Justice Amy Coney Barrett, who broke ranks in 22 decisions. By contrast, Justice Gorsuch did so just 14 times, and Justices Thomas and Alito remained firmly aligned with the conservative bloc, swinging only 8 and 5 times, respectively.

And later he writes: "Roberts remains the most institutionally consistent swing voter."

Perhaps the Chief Justice as swing should be discounted, however, as it takes at least one more conservative justice to flip the outcome in a case. But even if one discounts the Chief Justice, Feldman's analysis identifies Kavanaugh as much more of a swing than Justice Barrett. It's even illustrated in a graph.

Feldman notes that the predictive model he develops is strongest with regard to Justice Barrett--suggesting a greater degree of jurisprudential consistency--but that is a different question. So he writes:

The quantitative and case-level analyses converge on a central insight: Justice Barrett's swing behavior, though less frequent than Roberts or Kavanaugh, is the most systematically tied to the nature of the case. While Chief Justice Roberts often garners attention as the Supreme Court's institutional swing vote, the data reveals a quieter but consequential evolution: Justice Amy Coney Barrett is emerging as a swing vote in key domains—particularly those involving enforcement power, procedural fairness, and statutory interpretation.

Since joining the Court in 2020, Barrett has aligned with liberal justices in multiple closely divided decisions. Her swing behavior concentrates in issue areas defined by constraint and clarity: the 4th Amendment & Police Powers and Post-Conviction & Habeas Corpus clusters. Her votes in these domains don't signal ideological drift but reflect a jurisprudence rooted in textual rigor and structural restraint. . . .

Barrett's swing votes do not appear driven by ideology—they are rooted in textual discipline, a willingness to reconsider enforcement practices, and a procedural sensibility that sometimes leads her to coalition with the Court's liberal wing. She is not a centrist in the Kennedy mold. But she is increasingly a structural voice for constraint—especially when liberty, enforcement, and precision intersect.

And in terms of how Justice Barrett's behavior differs from that of Roberts and Kavanaugh:

Chief Justice Roberts remains the most frequent swing voter. But his influence is no longer universal—it is situational, shaped by questions of institutional credibility and precedent. Justice Kavanaugh is nearly as likely to swing, particularly in cases involving procedural fairness or criminal law. And Justice Barrett, while swinging less frequently overall, shows the clearest directional shift: a rising presence in clusters where state power, enforcement boundaries, and constitutional dignity are contested.

This reflects not the death of the swing vote—but its transformation. The era of a single ideological median, epitomized by Justice Kennedy, has given way to a modular model: different conservative justices swing in different legal terrains, guided by distinct judicial logics.

Kennedy's swing votes spanned doctrines and decades. His role was personal, often framed in the language of dignity and individual autonomy. But today's Court does not hinge on personality. It hinges on terrain.

• Roberts swings where institutional legitimacy is at stake—especially in administrative law, precedent-sensitive disputes, and interbranch tension.
• Kavanaugh swings when procedural integrity comes to the foreground—cases involving arrest process, prosecution, or due process claims.
• Barrett swings in domains of constitutional restraint—where liberty and dignity intersect with enforcement, and where doctrinal clarity can limit state power without signaling ideological compromise.

This fragmentation has both doctrinal and predictive consequences.

Among other things, Feldman notes, identifying and understanding the legal context of a given case is more important than political identity in determining whether one of these justices is likely to swing. That bottom line may not fit neatly into partisan or ideological complaints about any given justice's voting record, but it does provide important insight about the current Supreme Court.