Anthony Kennedy’s authorship of the majority (5-4) opinion in Obergefell v. Hodges confirmed his conversion to the Supreme Court’s “liberal” wing. And I have the numbers to prove the conversion, which occurred in the Court’s October Term 2014 (OT14).
The following analysis is based on the frequency of the justices’ disagreement with their colleagues in non-unanimous cases. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) To illustrate the statistics, I’ll take Justice Kennedy’s record in the non-unanimous cases of OT14 as an example:
- Kennedy disagreed with his former allies — Roberts, Scalia, Thomas, and Alito — a total of 125 percent of the time. His average disagreement with each ally was 31 percent (125 percent divided by 4).
- Kennedy disagreed with the four “liberals” 81 percent of the time, for an average of 20 percent.
- Dividing the second average by the first one, I find the ratio of the two averages, which is 0.65 in this case. That is, Kennedy disagreed with his former opponents (the “liberals”) only about two-thirds as often as he disagreed with his former allies.
In sum, the higher the ratio, the more often a justice has agreed with his supposed allies; the lower the ratio, the less often a justice has agreed with his supposed allies. A ratio of less than 1 means that a justice has moved to the other side of the Court’s ideological divide — as Kennedy did in OT14.
The following table summarizes the ratios for each justice in each of the last ten terms, from OT05 through OT14. Justices are grouped by wing (leaving Kennedy in the conservative wing, for purposes of this post) and then listed in order of seniority (the Chief is always first, by virtue of his office). Green and red shadings indicate the most “agreeable” and most “disagreeable” ratios for each wing and each term. Trends are simple linear estimates of each justice’s performance in OT15, given his or her record in preceding years. (Right-click to open a larger image in a new tab.)
Derived from statistics reported and archived by SCOTUSblog. Specific sources are listed at the bottom of this post. Justice O’Connor’s truncated participation in OT06 is omitted.
The year-to-year variations in mean ratios suggest that some terms are more fraught with ideologically divisive cases than others. I therefore normalized the year-to-year results by dividing each justice’s ratio for each year by the mean ratio for that justice’s wing. The following table gives the normalized ratios. (Right-click to open a larger image in a new tab.)
Kennedy’s unsurprising but definite lurch to the left is a less compelling story than the degree of cohesion among the the “liberal” justices in OT14. Look again at the first graphic and focus on the range of ratios for OT14:
- 4.27 to 5.15 for the “liberals”
- 1.32 to 1.80 among the four conservatives (counting Roberts as one despite his wobbliness).
I take this as evidence that the conservatives tend to think carefully about the cases before them; whereas, the “liberals” are bent on finding clever words to justify their predictable positions. That was certainly true of Kennedy’s fatuous opinion in Obergefell v. Hodges, which the dissenters exposed as a sophomoric flight of fancy.
The left’s cohesion on the Court is of a piece with its (generally successful) political strategy: Agree on a goal, stick together, sing the same tune, ignore the facts, and (usually) win.
* * *
The Court in Retrospect and Prospect
The Real Constitution and Civil Disobedience
A Declaration of Independence
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
A Declaration of Civil Disobedience
Questioning the National Debt
Rethinking the Constitution: “Freedom of Speech, and of the Press”
A Balanced-Budget Amendment and the Constitution
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
How Libertarians Ought to Think about the Constitution
An Agenda for the GOP
Wrong for the Wrong Reasons
The Court in Retrospect and Prospect (II)
The States and the Constitution
Posner the Fatuous
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Principles of Actionable Harm
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
See also U.S. Supreme Court: Lines of Succession for term-by-term and justice-by-justice rates of disagreement in non-unanimous cases.
Sources of statistics about disagreements in non-unanimous cases, by term (in ascending chronological order):