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The Supreme Court Might Have Three Swing Justices Now

When Justice Anthony Kennedy retired from the Supreme Court last summer, one big question was whether another justice would continue his legacy as the court’s “swing” vote. Kennedy wasn’t really a moderate, but he did serve as the court’s ideological fulcrum for more than 10 years, dramatically breaking from his conservative colleagues in high-profile cases on abortion and gay marriage. And with the appointment of Brett Kavanaugh, a federal judge and former Kennedy clerk who joined the court in October after allegations of sexual misconduct, the court seemed almost certain to shift its center of gravity to the right, potentially leaving Chief Justice John Roberts in the role of “swing” justice.

Now that this year’s Supreme Court term is over, we know that Kavanaugh is shaping up to be a solidly conservative justice — he barely beat out Roberts as the court’s new median and voted most frequently with Roberts and Justice Samuel Alito. And although Roberts did step several times into the role of “swing” justice, he wasn’t the only conservative justice who joined the liberals over the course of the term. Although he wasn’t in the middle ideologically, Justice Neil Gorsuch, Trump’s other nominee, was actually the most likely to join the liberals in closely decided cases.1 In fact, each of the conservative justices joined the liberals in a 5-4 or 5-3 decision at least once. With a newly cemented conservative majority on the court, the days of a single “swing” justice may be over.

Here are three takeaways from the term that can tell us what direction the court’s new conservative majority is moving, and what role Kavanaugh is playing:

The court’s new median justice is Kavanaugh, continuing a trend to the right

Last year, we wrote that Roberts would likely land at the ideological center of the court in Kennedy’s absence, and he did — but so did Kavanaugh, who voted in almost total lock-step with Roberts. In fact, Kavanaugh was actually slightly closer to the center than Roberts was, according to their Martin-Quinn scores, a prominent measure of judicial ideology calculated by scholars Lee Epstein and Andrew Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan using data from the Supreme Court Database. As the chart below shows, their scores were almost indistinguishable:

Kavanaugh’s score this term is very similar to Kennedy’s score from the last term, but Kennedy was somewhat unpredictable in his last few years on the bench, occasionally shifting into liberal territory. The fact that Roberts and Kavanaugh are now at the median means the court’s ideological center will likely be solidly conservative going forward. The shift, though, didn’t put the court in dramatically new territory, since Kavanaugh’s score is still similar to Kennedy’s in many of the years when he was the median justice.

The conservative bloc is more diverse than you think

One way to understand how the justices are approaching their work on the court is to look at how frequently they vote with each other. The alliances the justices form can illuminate the kind of conservative or liberal they’re turning out to be. And one of the biggest trends of the term was the stark distinction between Gorsuch and Kavanaugh.

Using SCOTUSBlog’s final statistics, I looked at the justices’ votes throughout the term. In these pairings, Kavanaugh closely aligned with Roberts and Alito, voting with Roberts 94 percent of the time and with Alito 91 percent of the time. But he only voted with Gorsuch 70 percent of the time — which meant that he voted with his fellow Trump appointee as often as he voted with liberal justices Elena Kagan and Stephen Breyer. Gorsuch, by contrast, voted most frequently with Thomas.

Kavanaugh was, overall, more moderate than his fellow Trump appointee. Gorsuch had a somewhat idiosyncratic voting record, even though he was still further to the right ideologically. For instance, Gorsuch cast several tie-breaking votes that favored criminal defendants, earning him unexpected praise from the left and solidifying his reputation as a skeptic of big government in all forms.

There isn’t a single “swing” justice anymore

Based on how they have ruled this year, there are now three justices who could reasonably be seen as “swing” votes of one kind or another: Roberts, Kavanaugh and Gorsuch. And it’s possible to argue that all — or none — of these justices have replaced Kennedy as the court’s “swing” justice. Roberts and Kavanaugh are more ideologically moderate than Gorsuch, but Gorsuch was more of a loose cannon. He joined the liberals in more closely divided cases than any of his conservative colleagues. That made him the “swingiest” conservative on the court, even though it was Roberts who ultimately determined the outcome of one of the most closely watched cases of the term when he voted to keep a question about citizenship off the 2020 census form for the time being.

In an odd way, the lack of a single “swing” justice may have created new opportunities for the court’s liberal minority to forge alliances with the conservatives. As I wrote last year, Kennedy voted in a conservative direction in 71 percent of the closely divided cases he was involved with through the October 2016 term. This year, less than half of the closely divided cases pitted the conservatives against the liberals, while each of the conservative justices joined the liberals in at least one case.

But some of the most important trends of the term aren’t visible in the data — and they indicate the conservative bloc may still be figuring out its strategy. Several of the conservative justices, including Gorsuch, were open about their willingness to reconsider key precedents involving abortion and the administrative state, to the alarm of their liberal colleagues. So it’s entirely possible the balance of power on the court is still shifting, and if these precedents are threatened in future terms, Roberts won’t be the only justice to watch. Trump’s appointees will play a central role in determining the court’s direction in the next term and beyond.

Footnotes

  1. This includes both 5-4 decisions and 5-3 decisions. Some cases were argued before Kavanaugh joined the court, which meant he couldn’t vote in them.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

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