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Politics on the Supreme Court--What the Numbers Say

By Jack M. Balkin

Judge Richard Posner and William Landes have posted on SSRN a fascinating paper, "Rational Judicial Behavior: A Statistical Study." They report a number of interesting and odd findings, which I hope to comment on later.

For now, I will merely note the results of a table they produced showing the political orientation of the votes of Supreme Court Justices in (non-unanimous) civil liberties cases and economic cases from 1937-2006. The study ranked all forty three sitting Justices in this period by votes from more to less conservative (the number reflects the fraction of their conservative votes in these cases):

1. Thomas .822
2. Rehnquist .815
3. Scalia .757
4. Roberts .753
5. Alito .740
...
10. Kennedy .647

To repeat, this list ranks all 43 justices by ideological vote going back 70 years. And by this ranking, 4 out of 5 of the most conservative justices (in economic and civil liberties cases) during this period now are now sitting on the Court. Kennedy, the swing "moderate" is ranked 10th highest (In case you are wondering, the liberal Justices on the current court are arrayed in the bottom half, but not at the very bottom, with Ginsburg the lowest at #35.)

It is reassuring that Thomas and Scalia follow "originalism" and interpret statutes according to their literal meaning, that Roberts "calls balls and strikes," and that Alito strictly "applies the law." I wonder what their numbers would have looked like had they gone ahead and voted their political views.

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Full post as published by Balkinization on May 02, 2008 (boomark / email).