Franke: A Conservative Supreme Court?
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.
- The two most recent chief justices, William Rehnquist and John Roberts, moved toward the middle over time. This departed from previous chief justices such as Warren Burger, who remained conservative, and Earl Warren, who took a sharp left turn. My thought is that this is a reflection of the increasing politicization of the court that the chief justice must attempt to mitigate in order to arrive at clear majority decisions.
- In the current court, Sotomayer and Ginsburg have become more liberal and their trend lines indicate a continued movement leftward. Breyer and Kaplan are not as extreme as their more liberal colleagues, but still liberal. Thomas and Alito have remained consistently conservative. Gorsuch is still too new but his 2017 voting pattern indicates moderately conservative.
- It is fascinating to see how often two or sometimes three justices will vote consistently together. This suggests a personal as well as philosophical affinity between them, enough to have significant influence on their decisions. The court has been known for its collegiality, at least in the past.
- Much is made of the so-called “swing justice” who casts the fifth vote on many major cases. Quinn and Martin identify which justice this has been going back to 1937. Kennedy most recently, and O’Connor and White previously, filled this role. Each tended to be moderately conservative with a few dips into the liberal side of the pool.
- Finally, who have been the most extreme justices over the past 80 years? William Douglass is the clear winner, starting solidly liberal then moderating during the 1940’s and finally taking a sharp left turn with Earl Warren’s assumption of the chief justice position. Douglass actually reaches the extremity of the scale, with no one reaching that level on the conservative side. Marshall, Brennan and Stevens are next in line, with liberal voting patterns similar to Sotomayer’s and Ginsburg’s today. Only Clarence Thomas and early voting from Rehnquist and Scalia can be mapped to that extremity on the conservative side of the scale.
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.