Author: Adam Feldman

On Monday, April 1, 2019, the Supreme Court decided the case Bucklew v. Precythe, with the five conservative justices in the majority and the four liberals in dissent. To some, including legal scholar and CNN analyst Steve Vladeck, this ruling ushered in a new conservative court without the moderating anchor of Justice Anthony Kennedy. Going even further, Slate’s Mark Joseph Stern referred to the decision as “beyond appalling,” while Think Progress’ Ian Millhiser described it as “the most bloodthirsty and cruel death penalty opinion of the modern era.” This decision at the very least separates this nascent court like never before as, for the first time, the current justices divided along ideological lines in a highly divisive case dealing with civil liberties (The justices also split 5-4 along the same lines in the immigration detention case Nielsen v. Preap.). By focusing on these decisions, along with some of his other rulings including his dissent in the abortion stay application June Medical v. Gee, Kavanaugh can easily be characterized as another justice on the far right who will inevitably push the Supreme Court into a conservative era perhaps like never seen before. Indeed, it would be surprising to find Kavanaugh on opposite sides of an abortion or death penalty decision from his conservative counterparts. That said, Kavanaugh’s first set of votes on the Supreme Court presents a picture that may (1) differentiate him from some of the other conservative justices and (2) help us understand where exactly he fits on the court’s ideological spectrum. This post uses data on current justices’ first sets of cases when they joined the Supreme Court to set a baseline for comparison to Kavanaugh’s votes thus far in the 2018-2019 term.

Although Supreme Court justices’ votes are not purely the product of ideological preferences, some of the most important cases the justices decide come down to 5-4 splits along ideological lines. This was especially apparent during the 2017 Supreme Court term. Even though Chief Justice John Roberts was in the conservative camp for many of these split decisions last term, he voted with the court’s liberals in Artis v. District of Columbia and authored the majority opinion, which was joined by the court’s liberal justices, in Carpenter v. U.S. At the end of the term, when Justice Anthony Kennedy left the court, most court-watchers were betting that the court’s ideological center was shifting to the right, leaving Roberts as the conservative median justice. So it came as a shock when Roberts sided with the court’s liberals in several instances at the start of the 2018 term, suggesting that those past votes with the liberals may been more than mere aberrations. What was the cause of this? Were these instances other anomalies? Is this another case of ideological drift? Or maybe the court’s conservative momentum has pushed it to the right of Roberts’ preferences. Some statistics help to disentangle this ball of yarn.

Although few people ever have the opportunity of sitting on the Supreme Court, some similarities exist between this upper echelon of judging and other jobs. One parallel has to do with job satisfaction. Judges who make it all the way to the Supreme Court should feel accomplished and contented because of their achievements, but there also must be at least a continuum of job satisfaction among the justices. That is not to say that any justice necessarily dislikes the job, just that they may not enjoy it equally either. Measuring job contentment in such a profession without firsthand anecdotal evidence is tricky at best. One thing we do know about the justices that might very well relate to job satisfaction is how often they vote in the Supreme Court’s majority or, conversely, how frequently they are in dissent. Historically, justices have been in the majority across entire Supreme Court terms. At very least this shows that they were in sufficient agreement with the other justices that they did not perceive the need to voice antipathetic sentiments. There have also been terms when justices have dissented in nearly half of the cases the court heard. This discord with the decision-making engine of the court could well breed frustration with those more often in the majority (note that this is not the only explanation for dissenting behavior). For instance, one of the court’s most frequent dissenting justices of in the past, Justice William Douglas, was described by a former clerk as “a very unhappy man.” The court’s most prolific modern dissenter, Justice Clarence Thomas, has also made some waves with positions he advanced in recent cases.

How divided is the current Supreme Court? On the surface the answer appears mixed. Much conversation over the past several years surrounding the court’s decisions has had to do with partisan and ideological divisions among the justices. These divisions and the court’s rightward shift appear a reality as evidenced by the systematic victories of the court’s conservative wing in ideologically divided 5-4 decisions from last term. These divisions do not necessarily define the court, however. Along with clear divisions, the Supreme Court under Chief Justice John Roberts has also reached new heights of consensus. The justices regularly split their votes along ideological lines when dealing with particular issues. The justices, however, are more often a united front then a separated one. This is particularly the case under Roberts. The regular consensus among the justices may actually be a product of the justices’ conscious efforts (as this historical study argues). Consensus is especially notable in the justices’ decisions early in the Supreme Court’s terms. The court has already decided several notable cases this term by unanimous vote. This level of agreement does not mean, however, that these decisions are not ideologically charged. In fact, the justices are still highly ideologically motivated even when they reach high levels of agreement. The objects of interest used to gauge the justices’ differing views early in this term are different from the justices’ votes on the merits of orally argued cases.

Not surprisingly, most cases before the Supreme Court involve high stakes. The justices can assure this by taking a small and selective caseload each term. With so many potential cases petitioned to the court on such a wide range of issues, the court really has the pick of the litter in terms of possible cases to hear. The types of issues involved in cases also range greatly, from individual or group rights to the limitations on actions by federal and state actors. Many of these cases also have direct or indirect financial implications. How much these cases will affect the economy is often not entirely clear at the outset, but the potential areas of impact are often demarcated through cases’ progress in the lower courts. A certain set of groups is highly active within the band of cases with direct financial implications. These groups have an interest in seeing these cases proceed to the Supreme Court and in the eventual case outcomes. This post identifies these groups and the extent of their involvement in the initial stages of Supreme Court litigation. Specifically, it tracks their involvement as amici for petitions in cases with direct financial implications that the justices later heard on the merits between the 2008 and 2018 terms.

Over the past several years the Supreme Court has undergone substantial change. Not only has the face of the court shifted, but so has its center, with the departure of Justice Anthony Kennedy. Oral arguments offer the only vantage point into the interactions and dynamics between the justices and provide some context for how they might vote, along with possible voting coalitions. Through this lens we can get a sense of how these changes affected existing and newly appointed justices. This situation is obviously quite dynamic, as Justice Ruth Bader Ginsburg was not able to take the bench during the January oral argument sitting and her current state of health is still in question.

The saga over Justice Ruth Bader Ginsburg’s health seems to ebb and flow from the headlines almost daily. Part of the mystery relates to the amount of information shared with the public. We know that, while treating Ginsburg for rib fractures, doctors found malignant lesions in her lungs that were promptly removed, and that subsequent tests have shown no evidence of any other cancer. Ginsburg has since missed oral arguments and is reportedly recovering at home while keeping current with the court’s business through reading briefs and written transcripts of oral arguments.

This Supreme Court term, like the past several before it, has been slow out of the gates. It also marks another term with a new justice – this time Justice Brett Kavanaugh. The justices often find consensus both early on in a term and after a largescale change, defining or redefining their jurisprudential boundaries only later. The justices have released five decisions in argued cases so far, all of them free even from concurrences. This is a new high count for unanimous decisions without a concurrence under Chief Justice John Roberts. With five signed decisions so far this term, the Supreme Court is moving at a faster pace than it did last term (which is a good thing because last term the justices were on a record-setting slow pace). The justices have yet to hear a case that sparks great interest from the general public. This might come as no surprise, as such closely watched cases are often, although not always, argued later in a term.

How better to wrap up the calendar year than by examining the president’s take on his relationship with the Supreme Court – especially because the court was one of President Donald Trump’s favorite topics of discussion this past year? These references ranged from the specific to the general and from praise to criticism. Many of the tropes are likely familiar. There was commentary on the Supreme Court vacancy after Justice Anthony Kennedy retired, more about Justice Brett Kavanaugh during the confirmation process, and a smattering of comments on a wider spectrum of issues ranging from the remaining justices to specific cases. FactBa.se is a helpful resource that compiles Trump’s comments by cataloging speech transcripts as well as tweets and making them publicly searchable. Trump’s comments often coincided with various Supreme Court-related events in which he had a vested interest. Overall, and after eliminating duplicate observations, Trump made some 280 public comments in which he mentioned the Supreme Court between December 22, 2017, and December 22, 2018. The frequency of these references by date is displayed below. [caption id="attachment_278148" align="aligncenter" width="500"] Click graph to enlarge.[/caption]