Is the Supreme Court liberal or conservative?

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.


  1. gshelley says

    It’s a shame he doesn’t link to the cases, or say who the defectors were
    I imagine one would be Scalia in one of the 4th amendment cases. I’d be surprised if Thomas and to a lesser extent Alito had joined with the 4 liberals
    Or the 3 defections the other way

  2. stumble says

    While I appreciate the many varied metrics to try and calculate the tilt of the court, absent an understanding of the cases themselves these measures quickly devolve into irrelevancy. For instance there is a huge difference in Obergefell and North Carolina Board of Dental Examiners v. Federal Trade Commission that was a 6-3 decision along ideological lines that found : “When a controlling number of the decision makers on a state licensing board are active participants in the occupation the board regulates, the board can invoke state-action immunity only if it is subject to active supervision by the state.”

    One is obviously a massive shift in our countries laws, the other is really only of interest to a small sliver of attorney’s let alone the general public. By the metrics used here however they give equal weight to the tilt of the court. As a practical matter the USSC deals mostly with very narrow cases that while important have minimal effect of the day to day lives of most Americans. To try and generalize from this is just incredibly difficult without getting into the rulings themselves.

    Add in the very small number of cases that the court deals with on an annual basis, exclude the 9-0, 8-0, and 8-1 cases and from year to year there are likely only a handful of cases that can even be rated.

    In 2013 for instance 65% of cases decided by the USSC was decided 9-0. While only 15% of cases were decided 5-4. This is out of 79 decisions made with arguments. So only 12 cases were decided 5-4 that year. This just isn’t a large enough sample size to make any judgments about what is going on with the tilt of the court.

    See for all the cases the USSC has ruled on since 2007

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