Hi, and welcome back to Legal Geek. This week, we finish up our series on the recently-concluded Supreme Court term with a look at how there may be more than 1 swing justice now.
When Anthony Kennedy announced his retirement from the Court last year, we reflected on his many years serving as the so-called swing justice. While Kennedy was a conservative overall, he would break from his ideological colleagues and join the liberal justices on big issues like abortion and LGBT rights. There was a significant concern that the swing justice role may disappear with Kennedy's departure. But the data is in on Kavanaugh's first term, and it leads to some interesting initial conclusions.
Kennedy's replacement Brett Kavanaugh did fall solidly in line with the conservatives, voting over 90% of the time in agreement with Chief Justice Roberts and Samuel Alito. However, there were clear distinctions drawn between his views and that of the other Trump nominee to the court Neil Gorsuch. These two conservative justices voted together 70% of the time, which is the same amount as Kavanaugh's agreements with liberal justices Elena Kagan and Stephen Breyer this term. Thus, there are some significant differences of opinion among the court's conservative members.
This has created a scenario in which the four liberal justices, who do vote in line with one another over 85% of the time, have been able to pick off different individuals on the conservative majority depending on the issue at hand. While Chief Justice Roberts and Brett Kavanaugh are most moderate and join with the liberals more than the other conservatives, Neil Gorsuch is a bit more of a loose cannon who joins his liberal colleagues or more closely divided issues, including things like criminal defense cases.
That means there are three reliable options in Roberts, Kavanaugh, and Gorsuch that the liberal justices can try to convince to join them on any hotly contested issue. This creates a situation which may be more advantageous for the liberals, as they don't always have to deal with one swing justice. In this regard, there may now be 3 swing justices on the Roberts court who each help chart the course for how the most partisan issues are handled in the next few years.
If you're curious about the voting statistics and numbers from the first term and want to dive in more, check out the articles and resources available on SCOTUSBlog and Five Thirty Eight. You can find other fun facts like the relative liberal and conservative stance of the most moderate Supreme Court member over the past 40 to 50 terms, as well as which Supreme Court justices disagree with one another the most, that being Clarence Thomas with each of Sonia Sotomayor and Ruth Bader Ginsburg in the 2018-19 term.
Kennedy's replacement Brett Kavanaugh did fall solidly in line with the conservatives, voting over 90% of the time in agreement with Chief Justice Roberts and Samuel Alito. However, there were clear distinctions drawn between his views and that of the other Trump nominee to the court Neil Gorsuch. These two conservative justices voted together 70% of the time, which is the same amount as Kavanaugh's agreements with liberal justices Elena Kagan and Stephen Breyer this term. Thus, there are some significant differences of opinion among the court's conservative members.
This has created a scenario in which the four liberal justices, who do vote in line with one another over 85% of the time, have been able to pick off different individuals on the conservative majority depending on the issue at hand. While Chief Justice Roberts and Brett Kavanaugh are most moderate and join with the liberals more than the other conservatives, Neil Gorsuch is a bit more of a loose cannon who joins his liberal colleagues or more closely divided issues, including things like criminal defense cases.
That means there are three reliable options in Roberts, Kavanaugh, and Gorsuch that the liberal justices can try to convince to join them on any hotly contested issue. This creates a situation which may be more advantageous for the liberals, as they don't always have to deal with one swing justice. In this regard, there may now be 3 swing justices on the Roberts court who each help chart the course for how the most partisan issues are handled in the next few years.
If you're curious about the voting statistics and numbers from the first term and want to dive in more, check out the articles and resources available on SCOTUSBlog and Five Thirty Eight. You can find other fun facts like the relative liberal and conservative stance of the most moderate Supreme Court member over the past 40 to 50 terms, as well as which Supreme Court justices disagree with one another the most, that being Clarence Thomas with each of Sonia Sotomayor and Ruth Bader Ginsburg in the 2018-19 term.
The Bottom Line is: there's little doubt that the replacement of Anthony Kennedy with Brett Kavanaugh has ushered in a new era on the Supreme Court. While there's still concern about some long precedents being in danger of consideration for being overturned in future terms, the data shows that the liberal minority on the court may have a better chance now of gaining a swing vote when needed. As always, we will keep our eyes on this highest court in the land as future terms and significant decision develop.
June and July always lead us to heavy serious subjects thanks to the annual end to the Supreme Court term, but I'm happy to report we have some interesting geeky subjects to tackle in the coming weeks. See you then!
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