The major development of the 2010 term was the Court’s comfortably settling into its now firmly-established Conservative perspective – led by Roberts.One difference this term was the return of Kennedy as the pivotal vote in 5-4 decisions (he decided 12 of 14 5-4 cases).Noteworthy data points on split decisions:
·The Conservative Core Continues to Command the Center of Gravity - Core Conservatives (Roberts, Alito, Scalia, Thomas) were on the winning side an average of 77% of the time in split decisions, close to last year’s 80%.For the prior decade+, Conservatives were on the winning side ~67% of the time – so their views are holding sway 10-15% more frequently (around 3-4 split decisions per year).They may differ on the reasoning, but these guys are pretty aligned on outcomes.
·Liberals in Dissent More Often 2008-2010 - Liberals (Breyer, Ginsberg, Sotomayor) were on the winning side in split decisions - 57% of the time in 2010, down from 60% in 2009.For the prior decade+ Liberals were on the winning side ~65% of the time, at rough parity with the Conservatives (Scalia, Thomas, Rehnquist).So, the Court continues to move modestly, but emphatically rightward – primarily a function of Alito’s replacing O’Connor.
·Inter-justice Agreement on Case Outcome – the 2010 term saw the Core Conservatives in lockstep agreement ~80% of the time with each other on split decisions.In 2009 the figure was 72% - close to the ~70% average over the past decade+.The Liberals (Breyer, Ginsberg, Sotomayer, and Kagan) average inter-justice agreement was 76% in 2010 - higher than prior years owing to Stevens being a more independent sort than Kagan.
·5-4 Decisions more evenly Balanced – While the Conservatives held the edge on the tough 5-4 decisions (8-6 in 2010, similar to the 11-9 situation in 2008), this was far less fractious than 2009 where the conservative position won the day 8-2).
·Pairings: Sotomayer and Kagan voted on the same side of split decisions 93%of the time in the 2010 term.This was the highest rate of concurrence by far for Liberals in the past two decades – owing in some part to Kagan’s having to recuse herself on 10 occasions (reducing the eligible cases to compare).Roberts and Alito – Roberts and Alito were also on the same side in split decisions 93% of the time.Scalia and Thomas were only together 75% of the time, down from their 81% average over the past decade+, owing to Scalia and Roberts' voting together (83% in 2010) more frequently.
·Kennedy – As noted above, Kennedy was the pivotal vote on 12 of 14 split decisions.Kennedy’s Win% (88% of split decisions) returned him to the number one spot after ceding it to Roberts in 2009.While he is still pivotal - on the winning side 93% of the time in 2008 and 95% of the time in 2006), he now shares the “ideological center” of the Court’s split decisions with Roberts.Kennedy (of the 5 right of center justices) is the most frequent ally of the Liberals.However, he has found common cause with the Conservative position much more frequently (75% in 2010) than in the past (63% before 2007).
·The Replacements – Sotomayer (Souter) and Kagan (Stevens) – Sotomayer is firmly in the liberal camp and tends to concur with Liberals and Conservatives at similar levels as did Souter before her.However, Ginsberg and Sotomayer were in concurrence only 70% of the time, less than the Ginsberg:Souter ~80% concurrence rate for the prior decade+.As we surmised last year, Kagan has indeed seen things from a more consistent Liberal perspective than did Stevens.While often a leader of the Liberals, he was the justice with the lowest levels of Inter-justice agreement with the Core Liberals (and Conservatives) on case outcomes.This was (in part) a function of his standing alone in 8-1 minorities more often than other justices over the years.
In the net, the two new Liberal justices have been 1:1 replacements – not shifting the Court discernibly.So, 2010 was more of the same as 2009, with the Court continuing to solidify its modest, but decisive Conservative turn which began in 2008.Roberts is solidifying a flexible Conservative center which joins with either Kennedy, Scalia, and/or Alito to find common ground.Compared to Rehnquist (on the winning side ~70% of the time), he has been on the winning side ~85% of the time in the past 2 years.This is owed in large part to Alito’s replacing the centrist O’Connor.
So, expect the Court to deliver more of the same going forward until someone dies or resigns
2009 Term Draws to a Close
Conservatives Solidify Hold
Sotomayor Steps into Souter’s Shoes
The major development of the 2009 term was the Court’s comfortably settling into its now firmly-established Conservative perspective – led by Roberts and Scalia.Noteworthy data points:
·The Conservative Core now Commands the Center of Gravity - Core Conservatives (Roberts, Alito, Scalia, Thomas) were on the winning side and average of 80% of the time in split decisions, close to last year’s 79%.For the prior decade+, Conservatives were on the winning side ~67% of the time – so their views hold sway 13% more of the time (around 3-4 split decisions per year).They may differ on the reasoning, but these guys are pretty aligned on outcomes.
·Liberals in Dissent More Often in 2008 & 2009 - Liberals (Breyer, Ginsberg, Sotomayor) were on the winning side 60% of the time in 2009, up from 54% in 2008.For the prior decade+ Liberals were on the winning side ~65% of the time, at rough parity with the Conservatives.So, the Court has moved emphatically rightward – primarily a function of Alito’s replacing O’Connor.
·Inter-justice Agreement on Case Outcome – the 2008 term saw the Core Conservatives in lockstep agreement ~85% of the time with each other on split decisions.In 2009 the figure was 72% - close to the ~70% average over the past decade+. Excluding Stevens (see below), the Core Liberals average was 79% in 2009, much higher than prior years.Half of the Liberal’s agreements (all three voting the same way) came in dissents.
·Roberts and Scalia – Roberts and Scalia were on the winning side in split decisions 89% and 83% respectively in 2009 (higher than anyone else) – up from an average of the low 70%s in prior years.So, this has become Robert’s Court (replacing Kennedy as being most frequently in the majority).Kennedy, in turn shared that role with O’Connor in the prior decade+.Roberts has made Scalia a more dominant voice, so get ready for more of the “World According to Antonin”.
·Kennedy – After being on the winning side 93% of the time in 2008 (and 95% of the time in 2006), Kennedy’s position became less pivotal in 2009 (in the majority 80% of the time).Kennedy had his highest Inter-justice agreement with the Liberals in 2007 (62% agreement on split decisions), but has since returned to his longstanding Right-Center (vs. O’Connor’s Center-right) position. However, the Court's center of gravity has moved to the right of him.
·Breyer – Breyer had reached across the Liberal:Conservative abyss more frequently in recent years than his Core Liberal peers.In 2009, he returned to his historical Core Liberal status.
·Ginsberg - Ginsberg (a Core Liberal) was able to find common cause with the Core Conservatives – especially Roberts - much more frequently than in prior years – showing up on the same side as a Core Conservative judge an average of 48% of the time in split decisions in 2009.This may have been a function of the mix of cases (she had very low agreement with the Conservatives in 2008), or perhaps the inexorable turn of the Court rightward that drove Souter to retire last year.
·Stevens and Kagan – Stevens called them as he saw them.While often a leader of the Liberals, he was the justice with the lowest levels of Inter-justice agreement with the Core Liberals (and Conservatives) on case outcomes.He stood alone in 8-1 minorities more often than other justices over the years.If confirmed, Kagan would likely provide a more consistent Liberal vote than Stevens.
In the net, the Supreme Court solidified its decisive Conservative turn in 2008 after a right centrist flirtation in 2006 and 2007.Her personal smarts aside, Sotomayor looked a lot like Souter stand-in in 2009.Given the political vetting on nominees over the past 25 years, its likely that Kagan will fit in well with the Core Liberals.
Last year I said that if Obama were smart, his next appointment would be a 35 year old Asian wunderkinder with Centernarian great grandparents who’ll sit for 50 years.While I would prefer to have justices who were in their 50s, had practiced law, held elective office, had a federal judgeship for 5-10 years, exercised some discretion, and would retire in 20 years to the good life, there’s an argument for young, opinionated, inexperienced, and ideological judges who can be depended upon to turn the rudder of the Supreme Court (however slowly) in your preferred direction.
2008 Term Draws to a Close
Conservatives Solidify Hold
Breyer Drifts Towards Left Center (With more Focus than Manny ever had!)
The major development of the 2008 term was the tight discipline of the Conservative Core (Scalia, Roberts, Thomas, and Alito).Noteworthy data points:
·High Inter-justice agreement on outcome – the 2008 term saw the Core Conservatives agreeing ~85% of the time with each other on split decisions.This is higher than in 2007 (~70% on average), and during the 1994-2004 period (~70% average for Scalia, Rehnquist, and Thomas).They may differ on the reasoning, but these guys are pretty aligned on outcomes.
·Kennedy swung rightward again after his 2007 flirtation with the Liberals (62% agreement on split decisions in 2007, 45% in 2008, and 49% from 1994-2004).In contrast his 2008 average agreement with the Core Conservatives grew to 76% from 55% in 2007.Combining 2007 & 2008, he’s right around his 1994-2004 average of 63%.
·Breyer seems to be drifting towards left center.This conjures up unnerving images of Manny racing to the gap to flag down (maybe) a line drive heading for the Green Monster.One doesn’t really know how its going to turn out.For the first time he had agreement levels of <70% on split decisions with the other 3 Liberal justices.His Scalia & Thomas agreement levels have remained constant since the 1990s (in low to mid 30% range).He had higher agreement levels in 2007 & 2008 combined with Roberts and Alito (~45%) than he did with Rehnquist (~35%) when the latter was the third leg of the Conservative Core.His Kennedy agreement level has increased from 52% from 1994-2004, to 70% in 2007, and back to 60% in 2008. ·In the Factor Analysis of 2007-2008 data compared to 1994-2004, Breyer has been drawing away from the core liberals towards Kennedy and slightly toward Roberts and Alito (see the chart in the prior post).The main factor of Liberal:Conservative is the most significant variable in the analysis by far.However, a much weaker, but noteworthy second factor seems to be comprised of Kennedy:Breyer agreement in opposition to Scalia:Thomas agreement.
In the net, the Supreme Court took a decisive turn to the Conservative in 2008 after a right centrist flirtation in 2007.We don’t know whether it was the mix of cases or a clear direction – but one way to read Souter’s retirement is that he’s seen the handwriting on the wall and its not going to be fun to be a Liberal on the Court in the coming years.
Its been said that the Court dynamic changes with every new justice.Roberts and Alito have born this out.Perhaps Sotomayor will have a similar nuanced impact on the Court’s decisions. It will be interesting to see if she gravitates towards the Breyer "a quarter of the way over to Kennedy" perspective or if she lines up with Ginsberg (as did Souter most often) or creates a new dynamic.
If Obama were smart, his next appointment would be a 35 year old liberal Asian wunderkinder with centernarian great grandparents who’ll sit for 50 years.There’s a precedent – James Story who became a justice in 1811 at the age of 32.Thomas and Douglas were in their 40s.While I would prefer to have justices who were in their 50s, had practiced law in the private sector, held elective office, had a federal judgeship for 5-10 years, and would retire in their seventies to the good life, there’s a political argument for the young, ideological, inexperienced – and opinionated.
2008 Mid-term Update
Is the Supreme Court Forming a New Center?
Not on Your Life!
The 2007 Roberts Court appeared to be marking out new territory with a lower rate of 5-4 decisions and some unexpected alignments among the justices. A loose “Center” with Kennedy at the apex, with Roberts and Alito to his right and Breyer and Stevens on his left looked like it was forming. We posited that perhaps the Justices had found a "3rd Way” - an alternative approach to the polarized Conservative vs. Liberal dynamic which marked the Rehnquist Court over the prior decade.
Well... Never mind! The alignment pattern in the 2008 term so far looks a lot like that of 1994-2004 Rehnquist Court. Out of 35 decisions so far, 17 have been split -revealing a pattern of intra-justice agreement that is straight out of the Liberal vs. Conservative playbook. Roberts has a higher level of agreement with Scalia and Thomas than did Rehquist in his tenure. Alito echoes that pattern. On the left, the alignment is similar to that of the past 10 years - with the exception that Breyer has found a bit more common cause with Kennedy and Alito than in prior years. Stevens - in a reversal of his 2007 decision pattern - has returned to having (by far) the lowest level of agreement with the Right. Kennedy has been on the winning side of 100% of the cases.
Gaining Consensus? Why Bother?
We noted that in the 2007 term, the number of 5-4 decisions declined to 17% of all certiorari decisions vs. 28% in 2006 and an average of 20% from the Rehnquist Court of 1994-2004. In 2008 that figure is 23% - well within the historical range.
In the net, it appears that the 2008 Roberts Court is delivering the same kinds of alignment results of the Rehnquist Court - only more Conservative with the net add of Alito (on the Right) for O'Connor (on the Moderate Right).
Where do Roberts and Alito Fit on Liberal:Conservative Spectrum?
Factor analysis of decisions over the past decade shows that Scalia and Thomas (and Rehnquist when he was alive) have anchored the Conservative end of the Liberal:Conservative dimension, while Stevens, Breyer, Souter, and Ginsberg have anchored the Liberal end.
The blue bars to the right represent individual justice’s correlation on the Liberal:Conservative factor from 1994-2004. The red bar is the same measure for the 2007 term.
There's too little 2008 data to confidently adjust the data at this time. However, the trend this term is a return to the highly polarized intra-justice agreement patterns of the Rehnquist years.
In the figure above, a justice with a rating of 1.00 is as likely to concur in a decision with a member of their own group (Liberal or Conservative) as they are with a member of the other group. A ratio >1.00 indicates a greater affinity with members of the Liberal wing. A ratio of <1.0 indicates a greater affinity with members of the Conservative wing.
So What’s up with Stevens?
In our last post, we examined how Stevens alone explained a significant amount of the decision pattern change in 2007 Court. While firmly in the Liberal camp, Stevens was often an outlier through the 1994-2004 years. He alone accounted for 50% of all the 8-1 dissents during that period (although the frequency of his 8-1 dissents has been declining in recent years). Moreover he concurred with Rehnquist, Scalia, and/or Thomas ~20-25% of the time in non-unanimous decisions – by far the lowest justice:justice concurrence rate on the court during that period.
In 2008, his rate of agreement with Roberts, Alito, Scalia, and Thomas in non-unanimous decisions is around 12% vs. the 30-40% in the 2007 term. Not much common ground there! Summary
While the reasons aren't clear, the 2007 Roberts Court manifested a different dynamic in the alignment of justices on decisions compared to the Rehnquist Court over its last decade. So far in 2008 we're seeing a Rehnquist Court Redux.
The data is drawn from non-unanimous US Supreme Court certiorari decisions from 1991-2008. The primary method of analysis is pairwise comparison of the decisions of the justices vis-a-vis each other. The theory of this analysis is that mutual membership in the majority or minority in non-unanimous certiorari opinions connotes positively correlated judicial philosophy with judges who share the outcome. While justices may differ in their reasoning from case to case, over the period of a term, it is possible to see which justices are like-minded – at least in terms of the net outcome of cases.
As to the figure above, factor analysis is a crude technique for this sort of use (cluster analysis is preferable – but the 2007 clusters are hard to decipher). However, principle components factor analysis has historically generated a consistent Liberal:Conservative dimension factor in this data set and still has the most power in explaining the affinity of the justices.
The mix of cases accepted by the Court certainly is an important variable in whether a justice appears to be Liberal or Conservative. However, pair-wise comparisons of voting have been very stable from term to term. Assignment to a majority or minority ignores distinctions in concurrences or combined concurrences and dissents in part. I have elected to not include results from the 2005 term since the Court’s composition changed twice after the start of the term - making direct comparisons with prior years difficult.