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Wednesday, April 06, 2016

The new median Justice

Geoffrey Stone appeared on Dahlia Lithwick's Amicus podcast to criticize the Republican refusal to move on the Garland nomination. I agree with Stone's basic point that this is politics dressed up as neutral principles that do not hold water.

But Stone made another point, which may be more compelling: Yes, appointing Garland would move the Court to the left of where it is currently, but only to put the Court roughly back to where it was before Justice Alito replaced Justice O'Connor in 2005. His underlying argument goes like this:

   • When Alito replaced O'Connor, Justice Kennedy became the median justice and he is much more conservative than O'Connor, particularly on issues such as affirmative action and reproductive freedom (see, e.g., the Court reversing course on both issues almost immediately after Alito joined the Court).

   • Replacing Souter with Sotomayor and Stevens with Kagan moved the liberal side of the Court further left, creating a broader gap between the two sides, but leaving the median--Kennedy--in the same place.

   • If Garland joins the Court, Breyer or he becomes the new median justice, depending on who is further to the right. That moves the Court to the left because the median moves to the left, from Kennedy.

But to conclude that this only brings us back to 2004 (as opposed to, say, 1967), Breyer or Garland (whoever is the new median) would have to be in roughly the same place ideologically as O'Connor. Instinctively, this seems wrong--both are to the left of O'Connor, even substantially so. But on closer review, it is not so clear. After 80 cases together (about one term), Breyer agreed with O'Connor as to at least a judgment 83 % of the time, more than he did with anyone other than Ginsburg. And the chart in this piece places Breyer as more liberal than O'Connor (who is at the midpoint of the Martin-Quinn Score), although only slightly so. And if Garland is more conservative than Breyer, he must be similarly close to O'Connor on these scales. So maybe Stone is right that it will move the Court left, but not back to the days of a bloc of six reliably liberal Justices.

None of which is going to move the Senate majority, which finds anything to the left of the current Court unacceptable. But is interesting evidence for a counter-intuitive point.

Posted by Howard Wasserman on April 6, 2016 at 06:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


"think O'Connor shifted substantially to the left during the Bush Administration"

I think she didn't myself but these things are somewhat hard to quantify and usage of adjectives will lead to somewhat tedious discussions.

For instance, one comment notes he would be surprised if "Garland weren't substantially to O'Connor's left on issues of race" but O'Connor upheld race based affirmative action and very well might have voted with Breyer in Parents Involved. Now, maybe, if Garland was on the Court in the 1990s, he would have voted with the liberals on Adarand or Shaw, but we are long past those days.

But, of course, Garland is going to shift the Court left. The point seems to be that the Court shifted right enough that a moderate like Garland will only shift it somewhat left. On certain issues, his vote will matter a significant amount, though how much remains to be seen. And, even a little left especially with SCALIA being replaced will matter a lot for Republicans, who are more partisan these days.


I saw something btw that was interesting -- Douglas resigned in November 1975 and a non-elected President nominated Stevens (a moderate Republican) which the Democratic Senate confirmed. Different time etc. But, query: what was the line here for Republicans? If Scalia died in November 2015, which in this day and age is active election season, would their position be the same?

Posted by: Joe | Apr 7, 2016 11:37:52 AM

To my mind, Geoff's stronger point, made in a Tribune piece about a week ago, was that -- whether you believe Garland would move the court "dramatically" or "somewhat" to the left -- there have been 16 confirmations since 1968, and of the 8 that "substantially altered the ideological balance on the court," every one was nominated by a Republican president and moved it to the right. That happened under both Democratic and Republican controlled Senates.

In other words, the court moves left, it moves right, it moves left again, and yet until today the Senate always heard, voted on and (with the exception of Bork) confirmed the nominee. Never before has a party flatly refused. I think that's the main point: yes, of course Garland will move the court leftward. He's nominated by a Democratic president! Clarence Thomas was a "dramatic" rightward shift from Marshall for the same reason -- and he'd been on DC Circuit for a fraction of the time. He still got confirmed.

Surely the Senate can do what it wants. But it could've done that anytime in the past, too, and it didn't.

Posted by: Jesse Wegman | Apr 7, 2016 11:21:01 AM

This is demonstrably false. In 2004, the Harvard Law Review published a statistical retrospective of the Court's past ten Terms, as there had been no turn-over since Breyer's appointment a decade prior. As you note, O'Connor was the clear median Justice, finding "herself in five-Justice majorities more often than any of her colleagues, casting decisive votes in over three-quarters of 5-4 decisions." But, contrary to your suggestion, there was a massive skew in how often she sided with the conservatives compared to the liberals: "To one side were Justices Stevens, Souter, Ginsburg, and Breyer, with whom Justice O'Connor voted twenty-eight times. To the other were Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas, with whom she voted eighty-two times." In short, she was roughly three times more likely to join with the conservatives than with Breyer and the other liberals. So making Breyer the median Justice over that period, or going forward now, would have a massive effect on the closely divided cases that are typically the most important ones at the Court. (This is far more probative than looking at Breyer and O'Connor's *overall* agreement rate, since those numbers don't demonstrate very much given the large number of unanimous cases at the Court.)

Posted by: Hash | Apr 7, 2016 10:37:53 AM

Orin: If true, not sure how that cuts. Because the high level of agreement between Breyer and O'Connor was through 80 cases, so around 1995. That agreement presumably would have been greater by 2004.

Posted by: Howard Wasserman | Apr 6, 2016 10:20:37 PM

When you say "to the left of O'Connor," which O'Connor do you mean? I think O'Connor shifted substantially to the left during the Bush Administration, which you might attribute to criticism of Bush v. Gore, her growing distrust of George W. Bush, or something else. Because she was the swing vote and her views shifted, the Court of (say) 2004 was different from the Court of (say) 1996, even it if had all the same members.

Posted by: Orin Kerr | Apr 6, 2016 10:10:18 PM

*Sorry, Byron White's vote in Croson. I would just add that it's difficult to overstate the importance of the justiciability of partisan-gerrymandering claims, something which Garland's confirmation could produce a majority for; depending on the strength of the standard, making those claims justiciable could move a substantial number of seats in the House and in state legislatures to the Democratic column (since Republicans control the vast majority of state legislatures and thus do most of the partisan gerrymandering). Then there are federalism cases, where you wouldn't expect Garland to have anything like the same views as O'Connor.

Posted by: Asher Steinberg | Apr 6, 2016 9:27:07 PM

I would be rather surprised - not that I have any direct evidence of this - if Garland weren't substantially to O'Connor's left on issues of race. (Has any Democrat-appointed Justice ever voted to invalidate an affirmative action program? On a brief search, the only notable instances are Byron White's vote in Adarand and Justice Breyer's enigmatic concurrence in Gratz.) For whatever reason, commentary about what Garland's appointment would mean has largely revolved around Citizens United and Heller, but we forget that with Scalia's death there may well only be four votes left on the Court to uphold precedents like Croson (which O'Connor wrote), Adarand (same), Gratz, and Parents Involved. More importantly, in my view, I strongly suspect that Garland would be to O'Connor's left on the justiciability of partisan-gerrymandering claims (she thought them wholly nonjusticiable).

As to Stone, I guess I don't understand what's so terrible about the Republican stance. Presidents rarely get significant legislation passed in their last 1-2 years in office, unless it's emergency legislation like TARP. If Obama had a Democratic Congress and attempted to pass some controversial bill, would people bat an eye if the Republicans filibustered that bill, arguing that its passage should wait until after a presidential election where that bill was put at issue? I don't think so, and I'm not sure why a nomination that would dramatically move the Supreme Court to the left is so different, other than the modest harm caused by a long vacancy. The premise of Stone's argument seems to be that nominations to the Court are above politics, though they haven't been since Bork, or even Haynesworth, though they work changes in policy just as surely as legislation does, and though nominations to the lower courts, or the Cabinet, or agencies like the NLRB, are routinely blocked for "political" reasons, if by political one means objections to the policy preferences of the nominees. What's supposedly so objectionable about the Republican stance is their stated refusal to confirm any nominee, but no one really believes that they wouldn't confirm a conservative judge if one were nominated; their objection is to any liberal.

Posted by: Asher Steinberg | Apr 6, 2016 9:13:05 PM

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