# It’s Official: Kennedy Is Now a Member of the Court’s “Liberal” Wing

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.

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Related posts:

See also U.S. Supreme Court: Lines of Succession for term-by-term and justice-by-justice rates of disagreement in non-unanimous cases.

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Sources of statistics about disagreements in non-unanimous cases, by term (in ascending chronological order):

http://www.scotusblog.com/movabletype/archives/GULCSupCtInstituteFinalReportOT2005_30June06.pdf

# The Court in Retrospect and Prospect

SCOTUSblog has published its final tally of the frequency with which the nine justices of the U.S. Supreme Court disagreed with each other in the 53 non-unanimous cases that were decided in the recently ended term. The tally indicates that Kennedy, the so-called swing justice, generally aligns with the Court’s “conservative” wing, so I placed him there, in company with Alito, Roberts, Thomas, and Scalia. The Court’s “liberal” wing, of course, comprises Breyer, Souter, Ginsburg, and Stevens.*

I then ranked the members of the Court’s two wings according to a measure of their net agreement with the other members of their respective wings. Thus:

Alito, for example, was in disagreement with his four “allies” (in non-unanimous cases) a total of 72 percent of the time (see graph below), for an average of 18 percent per ally. Alito was in disagreement with his four “opponents” a total of 272 percent of the time, for an average of 68 percent per opponent.  By subtracting Alito’s average anti-“conservative” score (18 percent) from his average anti-“liberal” score (68 percent), I obtained his net average anti-“liberal” score (50 percent). Doing the same for the other four “conservatives,” I found Alito the most anti-“liberal” of the “conservatives. He was followed closely by Roberts, Thomas, and Scalia, in that order. Kennedy finished fifth by several lengths.

I applied the same method to the “liberals,” and found Breyer the least anti-“conservative” of the lot, with Souter and Ginsburg close to each other in second and third places, and Stevens a strong fourth (or first, if you root for the “liberal” camp). (The apparent arithmetic discrepancies for Thomas, Breyer, and Stevens are due to rounding.)

Thus, if you are a “conservative,” you are likely to rank the nine justices as follows: Alito, Roberts, Thomas, Scalia, Kennedy, Breyer, Souter, Ginsburg, and Stevens. (However, I would place Thomas first, because he comes closest to being a libertarian originalist.) I carried this ranking over to the following graphic, which gives a visual representation of the jurisprudential alignments in the Court’s recently completed term:

It is hard to see how Sotomayor’s ascendancy to the Court will change outcomes. She may be more assertive than Souter, but I would expect that to work against her in dealings with Alito, Roberts, Thomas, and Scalia. Nor would I expect Kennedy — who seems to pride himself on being the court’s “moderate conservative” — to respond well to Sotomayor’s reputedly “sharp elbows.” Even Kennedy found himself at odds with Stevens 60 percent of the time. And it seems likely that Sotomayor will vote with Stevens far more often than not — in spite of her convenient conversion to judicial restraint during her recent testimony before the Senate Judiciary Committee.

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* It would be more accurate to cal Alito, Roberts, and Scalia right-statists, with minarchistic tendencies; Thomas, a right-minarchist; and the rest, left-statists with varying degrees of preference for slavery at home and surrender abroad. (See this post for an explanation of the labels used in the preceding sentence.)