The Supreme Court: A Scorecard

The following table summarizes the frequency with which the justices disagreed with one another in non-unanimous cases during the recently completed 2019-2020 term (October Term 2019). (For a complete treatment of the terms during which John Roberts has been chief justice — OT2005-OT2019 — go here and scroll down past the three-part table that traces the Court’s lines of succession.) 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.

DEFECTIONS

I used the statistics that underlie the preceding table, and its counterparts for the preceding 14 terms, to construct the following index of defection (D) for each justice, by term:

D = percentage disagreement (in non-unanimous cases) with members of own wing/percentage disagreement (in non-unanimous cases) with members of opposite wing.

The “conservative” wing’s members during the 2005-2019 terms were and are Alito, Gorsuch, Kavanaugh, Kennedy, Roberts, Thomas, and Scalia. The “liberal” wings members in the period were and are Breyer, Ginsburg, Kagan, Sotomayor, Souter, and Stevens.

The lower the index, the more prone is a justice to vote with the other members of his or her wing; the higher the index, the more prone is a justice to vote with members of the opposing wing. Here’s a graph of the indices, by term:

Kennedy’s long-standing proneness to defect more often than his colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. His turnaround in the 2017 term restored him to the Court’s “conservative” wing. Whereupon he retired and was succeeded by Kavanaugh.

Roberts’s slippage in the 2011-2015 terms has never been fully reversed, and his performance in the 2019 term bodes ill for the future of the “conservative” wing. Roberts’s transparent attempts to protect the Court from accusations of political bias (e.g., the Obamacare, census, and DACA cases), have rightly caused conservatives to be wary of him.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017), but he seems to be a fairly solid “conservative”, with some notable exceptions (e.g., LGBTQ rights).

Kavanaugh’s record in his second term aligns him with Gorsuch as somewhat of a “conservative” maverick — but not in the same league as Kennedy and Roberts.

What’s most striking about the preceding graphs, other than Kennedy’s marked departure from the “conservative” wing after the 2010 term and sudden return to it in his final term, is the increasing coherence (ideological, not logical) of the “liberal” wing. This graph captures the difference between the wings:

Despite Kennedy’s retirement, the presence of Roberts (and to a lesser extent, Gorsuch and Kavanaugh), ensures that the “conservative” wing will be less monolithic than the “liberal” wing.

POLARIZATION

The statistics also yield an index of polarization (P) for each justice, by term:

P = maximum percentage of non-unanimous cases in which a justice disagreed with any other justice during the term

Graphically:

A slight upward trend over the past 15 terms? Perhaps. But there has been definite movement toward polarization since Kennedy’s peak defection terms (2014-2015). Trend or no trend, it’s clear that there is and has been a great deal of polarization among most of the justices. The exceptions are among the “conservatives”, namely Gorsuch, Kavanaugh, and Roberts — which is why the “liberal” wing is more monolithic.

THE THOMAS STANDARD

I would be pleased no end if the Supreme Court consisted of Clarence Thomas and eight clones of him. It seems to me that Justice Thomas has been the most faithful adherent of the Constitution among all of the justices who have served on the Court since I became interested in its doings more than 50 years ago. Taking Thomas as the standard for constitutional judging, it is possible to grade some of the other justices who have served with him, including all of his present colleagues.

Reversing the numbers discussed thus far, so that degree of disagreement becomes degree of agreement, and focusing on the extent to which other justices agree with Thomas non-unanimous cases, I obtain the following statistics:

Graphically:

Scalia was a stalwart “conservative”, albeit somewhat quirky inn criminal cases, as is Gorsuch. Alito remains a stalwart, and Kavanaugh shows promise. Roberts continues to slip away. Breyer, Ginsburg, Kagan, and Sotomayor remain stalwart “liberals”. At the present rate, Sotomayor will find herself alone on the Court’s far-left fringe.

The Age of Memes

Memes have always been with us, though they weren’t called that until 1976. According to Wikipedia, a meme

is an idea, behavior, or style that spreads from person to person within a culture—often with the aim of conveying a particular phenomenon, theme, or meaning represented by the meme. A meme acts as a unit for carrying cultural ideas, symbols, or practices, that can be transmitted from one mind to another through writing, speech, gestures, rituals, or other imitable phenomena with a mimicked theme. Supporters of the concept regard memes as cultural analogues to genes in that they self-replicate, mutate, and respond to selective pressures.

There’s really nothing new in all of that, except for the “scientific” name that has been applied to it.

No, what’s really new is the rapidity with which particular ideas (i.e., unbaked hypotheses, lies, rumors, and propaganda) spread and seem to take hold without having been examined carefully. Consider, for example, the ridiculous idea that the Betsy Ross flag is a “hurtful” symbol of slavery: from Colin Kapernick’s addled brain to myriad media outlets (including the “social” variety) and thence to the mouths of some presidential candidates in a matter of days. (I would say “to the brains of some presidential candidates”, but their ready acceptance of the meme suggests a dire shortage of gray matter, if not brains that have been conditioned to serve nefarious ends.)

I return to “Peak Civilization“:

In the West, rational inquiry seems to have peaked in the early 1960s. I needn’t remind you of the subsequent descent: mobs, riots, the din of “entertainment”, quasi-religious movements from hippiedom to “climate change”, and on and on into the night.

(In the same vein there is neo-Malthusianism-cum-environmental extremism, which in its mildest form wants some kind of population control and in its most virulent form wants the extinction of human beings.)

Not that rational inquiry has always (or ever) ruled the day, but the decline since the 1960s is striking to me.

What happened in and since the 1960s? Take the idea that humankind is doomed to extinction by “climate change” — a fringe idea, perhaps, but not an uncommonly held one.  Take the shrill and many-fold “social justice” movement, which encompasses so many “wrongs” and “victims” that it would be easier to describe it by listing its exceptions (mainly straight, white, conservative males of British and northwestern European descent whose sexuality has always been tightly controlled).

The meme that “change” (always beneficial, of course) can be accomplished by often-hysterical shrillness and mob action (now virtual as well as actual) got its start with the anti-Vietnam War protests of the 1960s. Adults in responsible positions (e.g. Walter Cronkite, LBJ, and Clark Kerr) encouraged the hysteria directly or by giving in to it. Rare was the person in a powerful position who tried to squelch it; Mayor Daley (Sr.) of Chicago was one such person, and for his sins he became a hated figure in his own (Democrat) party.

And so it came to pass that hysteria in the service of “social justice” became the norm. And then it came to pass that the instruments for spreading and amplifying hysteria were invented and widely adopted (personal computing, the internet, blogs, “social media”). The existing tools of mass communication (radio, movies, television) were swept along in the rising tide of hysteria, the owners and operators of such tools being no less anxious than stoned collegians to prove their “social consciousness”. In fact, the hysteria has spread to the owners and operators of major industrial firms, who swim in the same “elite” circles as their peers in the information-technology complex.

All of this was built on foundations laid insidiously by the public-education monopoly and the professoriate. Their time has finally arrived. And so “public” opinion (where “public” means overt) is dominated if not ruled by what I have elsewhere called the internet-media-academic complex.

The thing about memes, since long before they were called that, is their staying power. A long-standing meme (or constellation of them) — such as obeisance to Judeo-Christian norms in America — can’t be conquered by mere reason. It takes a new meme (or constellation of them) — such as “hope” and “change” and “social justice” — to overrun them. The human animal needs memes to occupy his mind when he has attained a degree of physical security that gives him the luxury conjuring six impossible things before breakfast, instead of having to concentrate his energy on catching or growing his breakfast. (One of the Democrat presidential candidates, albeit one on the far fringe, epitomizes the zaniness that flourishes among the spoiled children of capitalism.)

Do I mean to say that it would take a cataclysm of some kind, a catastrophe so dire that people would abandon political memes in their need to cooperate for subsistence, if not survival? Perhaps, but I am not a full-blown pessimist. Despite decades of brainwashing by the internet-media-academic complex, there is a healthy conservative movement in the country — healthier, in fact, than at any time since the country was essentially conservative (i.e., until 1963). Human nature, in other words, is a powerful force that no amount of brainwashing (or coercion) can eradicate (though it may channel it in undesirable directions for a time).

My hope, and I must call it that, is for the essential neighborliness of the vast majority of Americans to reassert itself among “ordinary” people, who will tire of the hysteria pouring forth from the internet-media-academic complex. Does half of America really want to be on the “other side” (a term that has been applied to the political divide only in this brief century)? I think not.

Though the uniting force need not be a cataclysm (e.g., a devastating EMP attack, a missile strike on U.S. territory), it must be a dramatic event of some kind. Perhaps it’s as simple as replacing Donald Trump in 2021 or 2025 with a less polarizing figure (but a conservative one nonetheless).

A final thought: Though the internet-media-academic complex is mainly responsible for the the present state of political polarization (and leftist aggression), I don’t want to cast aspersions on information technology itself.  Polarization is no more caused by information technology than are traffic deaths caused by automobiles, gun deaths caused by guns, or war caused by weapons. People drive cars, shoot guns, and fight wars. The problem is, as it always is, a small minority of the people — a minority that is striving for power and dominance by using words instead of weapons.

Supreme Court Page, Updated

With the end of the October 2018 term of the U.S. Supreme Court just behind us, I have updated “U.S. Supreme Court: Lines of Succession and Ideological Agreement“. It consists of four parts: Lines of Succession, Ideological Alignment, Polarization, and Judging the Justices: The Thomas Standard. The last two sections are new to the page; I adapted them from now-outdated posts.

A Nation of Enemies

The title of this post is hyperbolic, but it is nearer today’s truth than was Lincoln’s assertion at the end of his first inaugural address:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

The United States of 1861 was genetically and culturally close-knit by comparison to the genetically and culturally fractured nation of today. It is impossible to turn the clock back. We must accept the United States for what it is — a fractured nation dominated by a powerful, intrusive central government.

That government’s vast power, by the way, stems largely from Lincoln’s prosecution of the Civil War. The North’s victory in that war paved the way for the demise of the constitutional order  — a strictly limited central government responsible to States that still possessed most governmental power. Decentralization made it easier for citizens to control the degree to which governments could prey on them. And it made voting with one’s feet a real option, even in that age when inter-State mobility was an arduous and risky proposition.

The Polarized Court

First of all, polarization isn’t necessarily a bad thing. Imagine (horror of horrors) a Supreme Court whose members voted en bloc with Ruth Bader Ginsburg. What’s left of the Constitution would disappear in no time.

So, hurrah for polarization when it means that the likes of RBG and her allies on the Court are opposed by — and sometimes defeated by — the likes of Clarence Thomas and his allies on the Court. As of now, Justice Thomas’s allies are (with certainty) Justices Gorsuch and Alito, (sometimes) Chief Justice Roberts, and (one hopes) Justice Kavanaugh, who replaces the too-often compromising Justice Kennedy.

It is therefore my earnest hope that the Court will be, if anything, more polarized than it has been in recent years and decades. How polarized is that? According to Richard L. Hasen, a professor of law at the University of California,

[t]he trend toward presidents choosing more ideologically reliable court appointments began with Democratic president Bill Clinton, following two surprises under Republican president Ronald Reagan. The conservative Reagan appointed perennial “swing” justices Anthony Kennedy and Sandra Day O’Connor (Bartels 2015). Reagan chose Kennedy after the Senate rejected Judge Robert Bork, a more conservative nominee on some key issues (Epstein & Segal 2005).

The days of ideological surprise from appointed justices appear to be over. Today, presidents place “near-exclusive focus on ideological compatibility and reliability” (Bartels 2015, p. 177). Devins & Baum (2017) argue that although both Democratic and Republican presidents have increasingly taken ideology into account in the last four decades, there has been more dramatic movement on the Republican side since the Reagan administration—the first to consider conservative ideology the paramount criteria for selecting nominees. They further contend that the Federalist Society, a private organization of conservative and libertarian lawyers, judges, and activists, has played a central mediating role in the cultivation and choice of Republican judicial nominees (Devins & Baum 2017). This trend has only accelerated in the Trump administration….

Today no one doubts that the Supreme Court is growing more polarized in its decision making. The Court has long been divided into two ideological camps, liberal and conservative, in a bimodal distribution with a center fluctuating in size. While the Court long has been polarized on the basis of ideology [see Clark (2009) on the ways this polarization has been measured over time], it used to boast a larger center and fewer justices at the poles. Ideological polarization has increased in the last 50 years (Gooch 2015)….

For the past few decades and until recently, the Court featured four generally conservative justices, all appointed by Republican presidents; four generally liberal justices, all appointed by Democratic presidents; and swing justice Anthony Kennedy, who often sided with conservatives but sometimes sided with liberals on issues such as same-sex marriage (Bartels 2015, p. 172; Devins & Baum 2017; Hasen 2016)….

… Gone are justices appointed by Democratic presidents who sometimes voted conservatively (Kennedy-appointed Justice Byron White voted against abortion rights) and justices appointed by Republican presidents who sometimes voted liberally (Ford-appointed Justice John Paul Stevens voted in favor of abortion rights) (Bartels 2015, Devins & Baum 2017). Today, each justice’s ideology is better defined and aligned with the political party of the appointing president. Justices are more likely to be ideologically in line with the interests of their nominating president’s party and less likely to drift ideologically (or “evolve”).

Those observations, which will surprise no one who is more than a casual observer of the Court, are from Hasen’s “Polarization and the Judiciary“, Annual Review of Political Science, May 2019 (forthcoming). (Literature cited in parentheses is listed at the end of the paper.)

Hasen goes off course when he ventures into quantitative measures of polarization on the Court:

Bartels (2015) notes a “polarization paradox” whereby the percentage of 5–4 (or other one vote margin) Supreme Court decisions has been increasing at the same time that the percentage of unanimous opinions is increasing. Figure 2 shows both of these increases from 1971 to 2016 (Epstein et al. 2015, Washington University Law 2017). Note the sharp drop-off in one-margin decisions and sharp rise of unanimous decisions following the 2016 death of Justice Scalia, a temporary period of a 4–4 evenly divided partisan Supreme Court.

In fact, the Court wasn’t evenly divided during the interregnum between Scalia and Gorsuch. The only reliable conservative votes were those of Alito and Thomas. Kennedy and Roberts were swing votes, as discussed later in this post. Breyer, Ginsburg, Kagan, and Sotomayor formed a solid “liberal” bloc.

Moreover, Hasen’s figure 2 looks odd. Here it is:

Neither of the lines in Hasen’s figure 2 resembles, in shape, the results I derived from the Stat Packs at SCOTUSblog, which cover the 1995-2017 terms:

Unanimous decisions include all cases in which there was no dissenting vote, including per curiam decisions, even where the majority opinion was accompanied by one or more concurring opinions. Given the similarity of the two graphs with respect to unanimous opinions, that must be the definition used by Epstein et al. (the source of Hasen’s figure 2).

I am especially struck by the disparity between Hasen’s figure 2 and my graph with respect to the trend (or lack thereof) in decisions with a one-vote margin. (All such decisions during the 1995-2017 terms were by a 5-4 vote.) There is no “polarization paradox”. To the contrary — and as one would expect — there is a strong (though not perfect) negative relationship between unanimous and 5-4 decisions:

Color me unimpressed by Professor Hasen, at least on the evidence of “Polarization and the Judiciary”.

Just how polarized is the Court — or, rather, how polarized has it been recently? Quite polarized.

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I draw on the SCOTUSsblog Stat Packs to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. (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.) The statistics yield an index of polarization (P) for each justice, by term:

P = maximum percentage of non-unanimous cases in which a justice disagreed with any other justice during the term

Graphically:

A slight upward trend over the past 13 terms? Perhaps. But trend or no trend, it’s clear that there has been a great deal of polarization among most of the justices. Roberts joined Kennedy in the middle during the past four terms, but there have been (at least) seven highly polarized justices on the Court. In the past two terms, it has been Alito, Gorsuch, and Thomas (on the right) against Breyer, Ginsburg, Kagan, and Sotomayor (on the left).

I relish the hope that Kavanaugh will shore up the right. Now, if Roberts would only revert to his 2005-2013 form….

Misplaced Blame

George D. Montgomery laments “What the 2016 Election Has Done to My Family” (American Thinker, July 17, 2018):

… Trump Derangement Syndrome and the resulting “Resistance” are bad enough, with hundreds of administration posts unfilled and Democrats in Congress, the Department of Justice, and other agencies providing true obstruction of the president’s agenda.

What’s worse is that my own family has been torn apart.  I’m sure this has played out in many other families across the country.

The first indication of how bad it could get was when my sister declined to attend the Thanksgiving dinner I had prepared following the election in November 2016….

Alas, she held me personally responsible for getting Trump elected….

We have since managed to keep a cordial and mostly respectful relationship….

The situation with my other sister is worse.  Here you have an intelligent, educated  (master’s degree), and otherwise rational individual who has been completely unhinged by Trump’s election.  She too blames me personally and has sent me harassing and disparaging emails and texts in spite of my repeated requests that she stop.

Apparently, she is unable to logically accept the reality that Trump will be president for another two years (at least).  And like many progressives, she feels compelled to share the misery she must be experiencing in her own life, so she is directing her outrage at me, impugning my character, intellect, and morals.

The final straw came when her latest text “congratulated” me since “we now kidnap children and put them in cages,” among other accusations.  I had already stopped responding to her provocations; now I have blocked any future calls, texts, and emails.

Sounds like a personal problem to me. The election didn’t cause his sisters to lose their minds. Persistent rage signifies an underlying psychological disorder.

Not everyone is lucky enough to be born with a sunny, conservative disposition.


Related reading:
Jeffrey Lord, “Unmasked: America’s Real Fascists“, The American Spectator, June 26, 2018
Gabrielle Okun, “Study: Conservatives Are Happier Than Liberals“, The Daily Signal, July 13, 2018

Related post and page:
The Left and Violence
Leftism

The Dual Life of a Conservative

I suspect that many conservatives who write about politics lead two lives, as I do. One life is the life of intellectual engagement. The other life is the business of life itself: marrying, raising children, working, paying bills, taking the car in for service, buying groceries, and the thousand other things that make the years seem to roll by so quickly.

I suspect that I’m a typical conservative in that my mundane life isn’t politicized; for example:

I don’t choose the companies that I patronize because they support or oppose divestiture of Israeli bonds or oil-company stocks, unisex bathrooms, “green” energy, or any of the other causes du jour. I choose the companies I patronize because they deliver good value for the money I spend or invest there.

I certainly don’t patronize a grocery chain because of its owners’ politics. Why would I waste money at Whole Foods just because its founder, John Mackey, is supposed to be some kind of libertarian?

I didn’t send my children to private schools (of the right kind) so that they could avoid the left-wing indoctrination that prevailed in the public schools where they grew up.

I listen to music and read books composed, performed, or written by persons whose left-wing views are widely known and often evident in their works. Though I won’t tolerate outright preachiness (shut up and sing), I enjoy that which is good on its own merits and disregard the politics of those who create or present it.

I watch most of the shows presented by PBS on Masterpiece, despite the subsidies it receives directly and indirectly from the federal government. Again, it’s a matter of quality over politics. For the same reason I eschew bombastic “conservatives” like Bill O’Reilly, Sean Hannity, and Rush Limbaugh, whose shtick is as boring to me as that of any left-wing commentator.

I have absolutely no interest in the political leanings of the people I meet, and recoil when they insist on exposing their leanings (as leftists are wont to do). I take people as they come; that is, I evaluate them on the basis of their demonstrated competence, honesty, reliability, sense of humor, and likeability.

Most importantly, my marriage remains strong and happy despite the disparity between my wife’s political views and mine.

In daily life, then, my conservatism reveals itself as non-ideological and pragmatic. Non-ideological because conservatism isn’t an ideology, it’s a disposition. Pragmatic because the conservative disposition prefers the demonstrated value of a person or thing to the symbols of virtue or “correctness” which may attach to that person or thing.


Related posts:
More about Conservative Governance
The Authoritarianism of Modern Liberalism, and the Conservative Antidote
Economically Liberal, Socially Conservative
The Internet-Media-Academic Complex vs. Real Life
Rescuing Conservatism
If Men Were Angels
Death of a Nation
Leftism
Libertarianism, Conservatism, and Political Correctness

Society, Polarization, and Dissent

One definition of liberty is the “right or power to act as one chooses.” This seems to be the usual view of the matter. But it should be obvious that liberty depends on restraint. Acting as one chooses covers a lot of ground, including acts that prevent others from doing as they choose (e.g., murder and fraud). Liberty is therefore a matter of mutual restraint, where there are agreed limits on what one may do.

Society — true society — consists of people who, among other things, agree as to the limits on what one may do. That shared view isn’t imposed by regulation, statute, or judicial decree — though such things will arise from the shared view in a true society. Rather, the shared view arises from the experience of living together and finding the set of customs and prohibitions that yields peaceful, willing coexistence and its concomitant: beneficially cooperative behavior. Liberty, in other words.

Some of the customs and prohibitions of a society will seem arbitrary and foolish to an outsider. But it is the observance of those customs and prohibitions that binds a people in mutual trust and respect. Peaceful, willing coexistence and beneficially cooperative behavior depend on mutual trust and respect.

Customs are positive acts — the ways in which people are expected to comport themselves and behave toward each other. A good example is the degree to which emotion is openly expressed or suppressed, which varies from the reserve of Japanese to the exuberance of Italians. Consistent failure to observe a society’s customs brands one as an outsider, someone who isn’t to be trusted. Such a person will find it hard to make more than a menial living, and is unlikely to have friends other than renegades like himself.

Strict prohibitions are like those found in the last six of the Ten Commandments: do not dishonor your parents; don’t commit murder, adultery, or theft; don’t lie maliciously; and don’t covet what others have. (The last of these is dishonored regularly by “social justice warriors” who liken redistribution by force to Christian charity.) The violation of prohibitions calls for prosecution by those who have been entrusted by society to enforce its norms. Punishments — which will range from execution to public shaming — are meant not only to punish wrong-doing but also deter it. Rehabilitation is the responsibility of the wrong-doer, not society.

The United States has long since ceased to be anything that resembles a society. And therein lies the source of political polarization. Governance is no longer based on shared customs and a common morality that arise from eons of coexistence. Governance and the rules on which it is based are imposed from outside of society. Those who use “society” when they mean government are ignorant and evasive.

Those of us who remember something that resembled a society bitterly resent the outsiders within (to coin a phrase) who seek to impose on everyone their version of customs and morals. It is a corrupt version that has no roots in society; it is meant, instead, to destroy what is left of it.

The path to total destruction began in the late 1800s, with the rise of the Progressive movement. Progressivism then and now is corrupt at its core because it seeks to replace the evolved social, economic, and political order with “science.” Scratch a Progressive and you find a fascist with an agenda to be imposed by the force of government.

What is the legacy of Progressivism? This:

  • the income tax and Social Security, which together with a vast regulatory regime (also a product of Progressivism) enable the central government to control the economy
  • direct election of Senators, which robbed the States of a check on the actions of the central government
  • the Federal Reserve System, which helped to bring about the Great Depression, the Great Recession, and several other economic downturns
  • public education indoctrination by psychobbable-spouting leftists
  • identity politics
  • persecution and prosecution of business success (a.k.a. antitrust action)
  • control of the production of food and drugs, with consequences ranging from wasteful labeling regulations to murderous delays in the approval of medications
  • abortion
  • Prohibition (the only Progressive “reform” to have been rescinded)
  • left-wing economic theories (income redistribution, pump-priming)
  • the theft of private property and deprivation of freedom of contract through the empowerment of labor unions, which inevitably became thuggish.

There’s more, but that’s enough to bring down any civilization. And it has.

Perhaps — because of population growth and economic and political ambition — it was inevitable that America would be transformed from a collection of interlocking societies into a vast geopolitical entity ruled by Progressives and their intellectual heirs. But whatever the causes, the transformation is almost complete…

Except for those Americans who do remember something like a true society, those Americans who know instinctively what a true society would be like, and those Americans who want to preserve the bits of true society that haven’t yet been destroyed by the fascists in Washington, their enablers in the media and academia, and their dependents throughout the land.

That’s the real polarization in America. (As opposed to the false one between leftists at one pole and faux conservatives, who simply want to move left at a slower pace.) And the polarization will not end as long as dissent remains alive.

Which is why the left is killing dissent. First they came for the students; then they came for the Christians; then…

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.)

Supreme Court_ratios of disagreements among justices_OT05-OT14
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.)

Supreme Court_normalized ratios of disagreements_OT05-OT14

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.

*     *     *

Related posts:

The Court in Retrospect and Prospect
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
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
The Repealer
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Our Perfect, Perfect Constitution
Constitutional Confusion
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.

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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

http://www.scotusblog.com/archives/SuperStatPack.pdf; http://www.scotusblog.com/wp-content/uploads/2008/06/nonunan07.pdf

http://www.scotusblog.com/wp-content/uploads/2009/06/justice-agreement.pdf

http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Charts-070710-JA.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/SB_OT10_stat_pack_final.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/SB_agreement_OT11_final.pdf

http://scotusblog.com/wp-content/uploads/2013/06/agreement_OT12.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/SB_tables_OT13.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2015/06/SCOTUSblog_agreement-tables_OT14.pdf

Signature

“We the People” and Big Government: Part 1 (continued)

Incorporated into this post.

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:

090724_Supreme Court disagreement_2

090724_supreme-court-disagreement_3

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:

090724_supreme-court-disagreement_11

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.)