Franke: A Conservative Supreme Court?

October 11, 2018

by Mark Franke

Now that we are finally past the hyperbole, embarrassment and downright nastiness of the Kavanaugh confirmation in what used to be the venerable U. S. Senate, perhaps we can step back and take a dispassionate review of why this was so important.

First, let’s look at the results of several opinion polls that came out during the debate. Most showed that Brett Kavanaugh had the lowest positive numbers in history, well below 50 percent favorable but still slightly better than the negative number. Then we learned that fewer than 50 percent of Americans could name even one current justice of the Supreme Court of the United States, with barely a third capable of naming the current nominee. Even so, importance of the Court polled quite high at 91 percent claiming that the Court affects their everyday lives.

Naturally, polls show that Democrats think the Court is too conservative while Republicans think it is too liberal. So what is it? Fortunately, two University of Michigan scholars can provide some insight.

Called the Martin-Quinn Score after the two researchers, the model attempts to predict future voting on major issues based on a conservative-liberal continuum that analyzes past votes going back to 1937. Without going into the math involved, mainly because I’m not sure what the “Markov chain Monte Carlo method” is, a layman can look at a very interesting graphic display in Wikipedia to get a quick sense of voting patterns.

This model, as models everywhere, must oversimplify many things to get at the one significant measure it seeks. In this case, every controversial vote was assumed to represent liberal versus conservative interests or inclinations. The net result is a moving line for each justice over time that, when viewed for the Court as a whole, will provide some level of predictability on future decisions.

Here is a list of what I found to be the most interesting insights to be gained. These are my conclusions so your mileage may vary.

So is the Supreme Court becoming more liberal or more conservative? Is Brett Kavanaugh’s confirmation the signal of a hard turn to the right? We’ll just have to wait and see, but the historical perspective suggests a higher level of politicization on behalf of individual judges with the all-important swing vote (Kavanaugh or perhaps Chief Justice Roberts?) remaining highly influential in the majority opinions handed down.

One thing is clear to me. The contentiousness and purely political machinations of the recent hearings can only serve to further politicize the court at the expense of its constitutional mandate for independence. John Marshall, probably the greatest chief justice ever who successfully fought off efforts to politicize the Supreme Court during its formative years, would certainly disapprove.

Mark Franke, an adjunct scholar of the Indiana Policy Review, is formerly an associate vice chancellor at Indiana University-Purdue University Fort Wayne.


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