Despite the victories in the same-sex marriage and Obamacare cases, the general impression that people have is that the US Supreme Court is ideologically conservative. The meaning of labels like ‘conservative’ and ‘liberal’ and ‘left’ and ‘right’ are notoriously hard to pin down and are operationally elusive and I would love to be able to avoid them but cannot because they do provide a rough but convenient shorthand description for a general attitude, and thus avoids having to provide detailed descriptions.
In the case of the US Supreme Court, Tom Goldstein has come up with an interesting metric to try and see whether the term that was just completed was liberal or conservative by looking at the outcomes of close 5-4 or 6-3 decisions that also broke down largely on ideological lines. His conclusions might surprise some.
For present purposes, I treat four Justices as sitting to the Court’s left: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. I treat four Justices as sitting to the Court’s right: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. I treat Justice Anthony Kennedy as the Court’s “center.”
By seeing how many times the 5-4 or 6-3 outcomes went in favor of one bloc or another, his analysis suggests that the court’s left wing was more cohesive and successful in getting the outcomes they preferred than the right wing.
I count 26 cases this Term that were both close (5-4 or 6-3) and ideological (in the sense that they broke down principally on ideological lines, with ideology seemingly an important factor).
Of the 26 cases, the left prevailed in 19. Those included the first 9 of the Term. The right prevailed in 7.
In the 26, a Justice on the left voted with the right a total of 3 times. In 2 cases, those votes determined the outcome and produced a more conservative result, because Justice Kennedy or one of the conservatives voted for the more liberal result.
In the 26, a Justice on the right voted with the left 14 times. In 6 cases, those votes determined the outcome and produced a more liberal result, because Justice Kennedy voted for the more conservative result.
Note that the analysis above is skewed against finding the Term particularly liberal by treating Justice Kennedy as the Court’s “center.” That is true ideologically, but he is certainly a conservative. If he were characterized that way for my analysis, the number of defections to the left would be much higher.
By that measure, a Justice on the right voted with the left 25 times (compared with 3 times the reverse happened). That occurred in all 10 of the 10 major cases (because no Justice on the left voted with the right in any of those cases), and determined the outcome in all of them.
The full article is quite short and worth reading.