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June 30, 2009

Composition Effects?

The court was remarkably polarized in the 74 signed decisions it issued this term, dividing 5-to-4 or 6-to-3 in almost half of them, up from roughly a third in the three previous years. The court reversed lower courts about three-quarters of the time, up from two-thirds in the last term. ... Justice Kennedy was in the majority 92 percent of the time and in all but 5 of the 23 decisions in which the justices split 5-to-4. Those decisions were, moreover, often divided in the expected way: in 16, all four members of the court’s liberal wing were on one side and all four of its conservatives were on the other.

And in between them was Justice Kennedy, the most powerful jurist in America. He joined the liberals 5 times and the conservatives 11. That was a significant shift to the right: in the previous term, Justice Kennedy voted four times each with the liberals and the conservatives in cases divided along the traditional ideological fault line.

None of the inference discussed above is persuasive. We don't know what the natural variation in the ideological make-up of cases they can select. For all we know this is a perfectly natural level of variation and the cases were suited to policy and legal areas appealing to his conservative preferences. Sure, Roberts might have persuaded Kennedy to move a bit to the right, but we can't know if that explanation is required or natural variation is enough.

Posted by OneEyedMan at June 30, 2009 8:08 PM

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