John Roberts becomes the Supreme Court’s swing vote
The retirement of Supreme Court Justice Anthony M. Kennedy is all but certain to shift the ideology of the court to the right.
As the court’s swing vote, Kennedy is what political scientists call the “median justice.” Plot out the ideology of the court’s nine members, and you’ll find Kennedy smack in the middle with four conservatives on one side and four liberals on the other. The median justice wields considerable power on the court: On decisions that split neatly by ideology, you can’t have a majority without the median justice.
Political scientists have used different methods to calculate judicial ideology over the years. One of the most widely used is the Martin-Quinn score, which, at the risk of greatly oversimplifying, tracks how often justices vote with each other in affirming or reversing lower-court cases.
The nice thing about this score is that it allows us to place each justice on an ideological scale, which in turn allows us to track the overall ideology of the Supreme Court over time, including the position of the crucial median justice.
In terms of ideology, the conservative justice closest to Kennedy is Chief Justice John Roberts, according to the Quinn-Martin scores. President Donald Trump is almost certainly going to nominate somebody to the right of Roberts. Trump’s previous confirmed nominee, Justice Neil Gorsuch, for instance, is much closer to Justice Samuel Alito than he is to Roberts on the Quinn-Martin scale.
With Kennedy gone, and (presumably) a conservative to the right of him filling the vacancy, that means that Roberts becomes the court’s next median justice. As of the 2016 term, that would shift the ideological score of the median justice rightward, from Kennedy’s -.362 to Roberts’ +. 257, more than a half a total ideological point.
To put it in simpler terms, the chief justice is now the court’s swing vote.
One important caveat is that scores haven’t been calculated for the 2017-2018 term, which just wrapped up. There’s also some debate among political scientists over the best way to track Supreme Court ideology over time. One big knock against Martin-Quinn scores, for instance, is that they don’t at all consider the substance of the cases considered.
But regardless, it’s clear that as long as Trump nominates a conservative to the right of Roberts, the balance of ideological power on the court is about to undergo a considerable shift. ©2018 The New York Times
Justice Anthony M. Kennedy announced Wednesday that he would retire from the Supreme Court. His vacancy sets up a showdown for a replacement that could change the direction of the highest court in the United States.
President Donald Trump said he intends to choose his next Supreme Court nominee from a list he began compiling during the 2016 presidential campaign.
“I think you see the kind of quality that we’re looking at when you look at that list,” Trump said Wednesday in the Oval Office.
He added, “So it will be somebody from that list.”
Here is a look at some early front-runners for the job:
Amul Thapar, 6th U.S. Circuit Court of Appeals
Thapar was confirmed to the appeals court last year and previously served as a judge on the U.S. District Court in eastern Kentucky. The son of Indian-American immigrants, the White House said he was the first federal court judge of South Asian descent. Thapar was among those considered by Trump for last year’s Supreme Court vacancy. “I’m my own judge and I hope my track record speaks to that,” he told senators last year.
Thomas Hardiman, 3rd U.S. Circuit Court of Appeals
Trump considered Hardiman last year for the seat that was ultimately filled by Justice Neil Gorsuch. Hardiman was first appointed to the federal bench by President George W. Bush in 2003 and was elevated to the appeals court four years later.
He has built a reputation as a reliable conservative on the court, where he has served alongside Trump’s sister, Judge Maryanne Trump Barry, who is said to have recommended Hardiman for the Supreme Court vacancy last year.
One opinion that could resonate with Trump: Hardiman signed on to a decision declaring that asylum-seekers could not ask a U.S. District Court to prevent or postpone their deportation while challenging their removal orders.
William Pryor Jr., 11th U.S. Circuit Court of Appeals
Pryor was viewed as a finalist for last year’s vacant seat on the court. He has called Roe v. Wade, the 1973 Supreme Court decision that established a woman’s constitutional right to have an abortion, as “the worst abomination of constitutional law in our history.” He is close with Attorney General Jeff Sessions and, like Sessions, is an outspoken conservative who has strongly opposed gay rights.
Brett Kavanaugh, U.S. Court of Appeals for the District of Columbia Circuit
Even before Gorsuch was confirmed, White House officials were already signaling their interest in Kavanaugh for a future opening on the Supreme Court, should it occur. Trump did not include Kavanaugh on his original list of potential nominees, but added him to a revised list released last fall.
A former prosecutor under the independent counsel Kenneth Starr, Kavanaugh was appointed to the court by President George W. Bush in 2006 and had a difficult road to confirmation.
As a White House adviser, he helped Bush fill the nation’s courts with conservatives. “Mr. Kavanaugh would probably win first prize as the hard right’s political lawyer,” Sen. Chuck Schumer, D-N.Y., said at the time.
Joan Larsen, 6th U.S. Circuit Court of Appeals
A former Michigan state Supreme Court justice, Larsen was confirmed last year to the federal bench. During her confirmation process, she was criticized by civil rights groups for her past rulings and writings on gay rights.
Larsen clerked for former Justice Antonin Scalia and has praised his by-the-letter reading of the Constitution and the law.
A former law professor at the University of Michigan, Larsen said at her confirmation hearing last year that she would be an independent-minded jurist. “If someone believes I’ve passed some litmus test, I honestly don’t know how they came to that conclusion,” she said.
Amy Coney Barrett, 7th U.S. Circuit Court of Appeals
Barrett became something of a hero to religious conservatives last year when Sen. Dianne Feinstein, D-Calif., questioned what influence the jurist’s Roman Catholic faith would have on her rulings from the bench. She was questioned in particular about a 1998 article in which she argued that Catholic judges should sometimes recuse themselves from sentencing in death penalty cases.
At her confirmation hearing, she backed away from that position. A former law clerk to Scalia, she served for 15 years as a law professor at the University of Notre Dame.