percentages denote that the Roberts Court are more divided than its predecessors (Appendix Figure 1). Notwithstanding the aforementioned facts, many Supreme Court observers call the contemporary Court the “Kennedy Court,” because Justice Kennedy is often described as the median justice (Alfano 2009, Cole 2006). During the Court’s 2012-2013 Term, Justice Kennedy was in the majority in 5-4 cases more than any other justice at 87%. There were 23 cases decided 5-4 during that term. Kennedy was in the majority in 20 of them. In the 5-4 decisions, Kennedy sided with the conservative bloc 43% of the time and the liberal wing 26% of the time. Therefore, Kennedy was the swing vote 69% of the time in 5-4 decisions (Red State: The Supreme Court in Review, 7/1/2013). In this paper, I will analyze the ideological voting behavior of the justices’ on the Roberts Court to ascertain which exemplify moderate ideological direction. The question of judicial voting alignments has been an interesting and important issue in judicial politics (Hensley, Thomas, Christopher E. Smith, and Joyce A. Baugh 1997). To analyze judicial alignments, scholars often categorize the justices on the Court into voting blocs on the basis of ideological behavior (Jost 1995; Biskupic 1992).To comprehend such power, political scientists have studied the behavior of justices who pivot between two competing positions, as that tension may result in fluidity in individual votes (Hagle and Spaeth 1991; Maltzman and Wahlbeck 1996.) The position that the moderates hold at the ideological center may tend to “tip or swing” the Court one way or the other (Schmidt and Yalof 2004). Thus, in closely divided cases the votes cast by the moderate center justices determine the balance of power on the Court. The purposes of this article are to reveal the characteristics of moderate judicial behavior and to determine the conditions under which moderate decision-making occurred on the Roberts
For the coding of the case salience variable, I relied on Epstein and article on Measuring Issue Salience. The authors utilized the Index to the New York Times and LEXIS to create the NYT measure. A salient case (1) led to a story on the front page of the Times on the day after the Court handed it down, (2) was the lead or “headline” case in the story, and (3) was orally argued and decided with an opinion (p.73). Vanessa Baird (2004) claimed that the New York Times was a valid measure of contemporaneous evaluations of the case’s political salience. According to Beverly Cook (1993), a minimum of two authorities must be utilized in order for a case to be considered salient “since to accept a single authority would introduce idiosyncratic standards.” Moreover, Cook analyzed 15 different measures and found that the list compiled by Congressional Quarterly was a concise but a “reliable authority for research on contemporary decisions” (Cook 1993, 1136). Although Harold Spaeth has utilized the Lawyers Edition to identify significant non-constitutional cases, Cook claims that the Lawyers Edition is a questionable source due to the lack of identifiable scholars who take responsibility for the cases selected. Brenner and Arrington (2002) evaluated the usefulness of both the NYT and CQ lists for the purposes of measuring salience on the Court. They found that cases on both lists were more likely to be salient than cases on only one list. The moderate judicial scale will now be examined descriptively to identify moderate characteristics and traits. This is not the first study to gauge the level of case salience with two distinct indexes. As somewhat similar to previous research, I classified cases as “highly salient”, if they appeared in the New York Times and are listed in Congressional Quarterly’s list of major cases. Both Epstein & Segal (2000) and Baird (2004) measured issue salience by relying solely on the basis of the front page of the New York Times. However, Brenner & Arrington (2002) concluded that a researcher who wants a short list of the most salient cases might select the cases that appear on
Table 2 Justice Name Mean Mean Difference Standard Deviation Standard Deviation Difference John Paul Stevens Liberal Direction -High Case Salience -Minimum Winning Coalition Conservative Dir. -High Case Sal. -MWC .0016 .0019 .0015 .0005 .0001 .0014 .125 .043 .120 .022 .005 .021 Antonin Scalia Liberal Direction -High Case Sal. -MWC Conservative Dir. -High Case Sal. -MWC .02 .0016 .05 .0053 .03 .0037 .12 .04 .23 .07 .11 .03
Clarence Thomas Liberal Direction -High Case Sal. -MWC Conservative Dir. -High Case Sal. -MWC .02 .0016 .05 .0056 .03 .0040 .14 .04 .23 .07 .09 .03 Anthony Kennedy Liberal Direction -High Case Sal. -MWC Conservative Dir. -High Case Sal. -MWC .04 .0034 .05 .0057 .01 .0023 .20 .06 .22 .07 .02 .01 Ruth Ginsburg Liberal Direction -High Case Sal. -MWC Conservative Dir. -High Case Sal. -MWC .04 .04 .02 .02 .02 .02 .19 .19 .13 .13 .06 .06
Sonia Sotomayor Liberal Direction -High Case Sal. -MWC Conservative Dir. -High Case Sal. -MWC .03 .0002 .00 .0020 .03 .0018 .16 .04 .10 .01 .06 .03 Elena Kagan Liberal Direction -High Case Sal. -MWC Conservative Dir. -High Case Sal. -MWC .02 .0017 .01 .0003 .01 .0014 .14 .04 .10 .02 .04 .02 Source: U.S. Supreme Court Database According to the descriptive statistical results in Table 1, Justices Breyer, Ginsburg and Kagan ideological percentage differences on the Roberts Court were ten percent or less. When analyzing the parameters of the model in Table 2, Justices Stevens, Kennedy and Kagan’s comparison of mean differences most closely resembles the parameters of the moderate judicial decision-making model. The mean ideological difference for the aforementioned justices when comparing the High Case Salience (HCS) variable is only .01. The Minimum Winning Coalition (MWC) variable mean difference is only .0014 when comparing ideological direction for both
3: Chief Justice Roberts vote to join the Majority to Uphold Precedent in Salient versus Non-salient Cases (2005-2014) Independent Roberts’s Conservative Voting Change in Probabilities Roberts’s Liberal Voting Change in Constant -6.013 -6.332 High Case Salience .350 (.425) .001 -.404 (.451) -.001 Low Case Salience .870* (.394) .003 1.251** (.381) .004 Minimum Winning Coalition .108 (.119) .000 -1.113*** (.204) -.001 Constitutional Cases 2.409*** (.234) .026 3.458*** (.234) .047 Federal Statute 2.709*** (.128) .034 3.051*** (.145) .029 Civil Rights cases .767*** (.164) .003 .681*** (.189) .001 Chi-Square 694.3 626.9 Log Likelihood 5236.9 3750.3 Dependent variable: Justice voted with majority to uphold precedent; *: p<0. 05; **: p<0. 01; ***: p<0.001 N=770 Probabilities represent the increase (or decline) in the probability that the justice joined the majority to uphold precedent for one standard deviation change in the independent variable from 0 to 1 for dummy variables, holding all the other independent variables at their respective means. SPSS and Excel
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