The Justices

List of All Justices

As of 2007 there have been 115 appointments to the Court, counting the interim appointment of John Rutledge in 1795, an appointment ultimately rejected by the Senate. Samuel Alito is only the 110th person to be appointed, however. Five justices have filled positions twice, 3 elevated from Associate Justice to Chief Justice (E. White, H. F. Stone, and W. H. Rehnquist), Charles Evans Hughes who was reappointed to the Court after having resigned once before, and Rutledge who actually served as Chief Justice during a term before his rejection by the Senate. Click on the link "List of All Justices" to see a list of all 110, along with with information about them and their appointments.

Justices' Voting Patterns

Ideology Table 2006-07 | Voting Alignments Table 2006-07 | Voting in 2005-06

The Court is often characterized as a battleground between conservative and liberal ideologies. There is more to that than the justices wish to recognize and less to it than advocacy groups argue. Limiting political ideology to conservative v. liberal, however, is a false dichotomy. Other ideological perspectives exist, perhaps most prominently in the American context, libertarian and populist, to mention only two. To further complicate any ideological analysis, the multidimensionality of issues appearing in any one case may find justices in agreement on the judgment rendered while differing on the rationales for that judgment. It is also true that a number of issues arising before the Court simply defy ideological description. Finally, justices are constrained by the texts of the Constitution, laws, treaties, etc. and, regardless of ideology and personal beliefs, justices do restrain themselves, some more than others, but all to some extent. The fact that unanimous decisions were rendered in more than half of the cases accepted and addressed by the Court in the 2005-06 term and three-eights of the cases this past year testifies to a common acceptance of certain constraints and common understandings.

With those caveats in mind, it remains patently clear that justices do differ along lines that permit ideological interpretations. That Justices Thomas and Stevens agreed with each other in only 18% of nonunanimous cases during the 2006-07 term suggests some fundamental differences between the two are at work. Ideological distinctions seem easiest to apply in areas involving the Bill of Rights and certain due process issues, especially those parts that specify individual rights—a libertarian principle—and equal protection, a liberal principle. Conservatism developed originally as a reaction to liberalism and in this constitutional context, a conservative position would favor limiting individual rights that challenge or disturb prevalent societal norms and customs while limiting efforts to mandate equality.

Because the libertarian position can sometimes be assumed by liberals (individual liberty v. state imposition of societal norms) and other times by conservatives (individual liberty v. state mandated equality), it is easier to contrast positions as being liberal or conservative because they never coincide. Consequently, we may define outcomes of certain cases as being more consistent with either conservative or liberal positions recognizing that a libertarian position, or for that matter a populist one, could coincide with the conservative or liberal position, depending on the issue. For the perils in trying to classify cases as having conservative or liberal outcomes, view this pop-up on the Davis v. Washington (2005) and Hammon v. Indiana (2005) cases.

In the table that follows are votes on those nonunanimous cases from the 2006-07 term involving Constitutional issues that lend themselves to a conservative-liberal interpretation. The Guttman scale format arranges the cases vertically from the highest number of votes in the liberal direction to the least number. The justices are arranged from left to right starting with who cast the most votes cast in the liberal direction. There are 30 cases and Stevens is listed first, having voted in the liberal direction on all but one. Two scores are given for the justices. The raw score is the percentage of cases in which the justice sided with the Liberal (L) position defined for the case. The position score is based on the point at which the votes for a justice switch from Liberal to Conservative with the fewest inconsistencies. For example, beginning with the first 2-7 decision case, Justice Souter begins a string of 5 Conservative position votes only to conclude as a sole Liberal dissenter in the final two cases. His raw score is 24/30, or 80% (he had one other earlier C vote for a total of 6). However, his position score is determined by the point at which his string of predominantly L votes ceased and the string of C votes began. That point is with the 23rd case, making his position score 23/70, or 77%.

The table above reveals much about the new dominance of the Court by a conservative majority made up Chief Justice Roberts along with Justices Scalia, Thomas, Alito, and Kennedy. For those thirty cases, nearly three-fourth (22) were decided in a direction that could be defined as more conservative than liberal. While somewhat less cohesive than the most conservative bloc of four, Justices Stevens, Ginsburg, Souter, and Breyer hold down a more liberal position on most of these issues and occasionally muster some victories when Justice Kennedy swings over to their position. Exactly two-thirds of these 30 cases were decided by five-to-four votes and Justice Kennedy was on the winning side in all twenty of them. Indeed, Kennedy was on the winning side in 29 of the 30 cases, some 97%. The Chief Justice was the next most winning member with 83%.

Another way of summarizing the votes of justices on cases is to see how frequently each pair of justices vote in the same way. The table below summarizes that information for all 45 nonunanimous cases in the upper right diagonal and in the lower left diagonal and in italics for the subset of 30 nonunanimous cases that permit a liberal/conservative ideological interpretation. As previously noted, 37.5% of the cases in the 2006-07 term were decided unanimously, so the data below underestimates total agreement. Unanimous cases do nothing to help identify voting alignments. It takes differences of opinion to identify whether voting blocs exist in those significant issues that admit to more than one point of view.

We would expect the percentages in the lower left diagonal to be more extreme (both higher and lower) than the upper right, reflecting a clearer ideological underpinning. That is indeed the case. The four most conservative justices (Roberts, Scalia, Thomas, and Alito) average 93% agreement on the 30 cases in the lower left diagonal and all pairings of them are 90% or higher. They are more cohesive than the four most liberal justices (Stevens, Ginsburg, Souter, and Breyer) who exhibit a lower average of 84% and a broader range of 77% to 97% agreement. Anyone tempted to regard Justice Kennedy as a middle voter should note that his agreements with the conservative four range from 73% to 83%, while his pairings with the more liberal four fall between 33% to 48%.

Justice Kennedy's status as the median or swing justice is more solid than that of either Justice Powell or Justice O'Connor, who previously played that pivotal role. In addition to the 20 liberal/conservative 5-4 cases in which Kennedy determined the winning side in all 20, there were 6 other 5-4 cases that lacked the normal ideological split, but Kennedy was still on the winning side in all of those. With only one exception for the entire caseload in 2006-07, as Kennedy went, so went the decision of the Court.

Chief Justice Roberts may not have been on the winning side as often as Kennedy, but he lost only in 5-4 decisions and the lone 5-3 case. The Chief Justice joined the winning coalition in every case that was not a 5-4 or 5-3 decision. Even Kennedy could not make that claim, raising the distinct possibility of strategic voting by the Chief Justice. When and only when in the majority, the Chief Justice assigns responsibility for writing the opinion of the Court. By always joining the majority when the decision was not otherwise in play, the Chief Justice maximized his power.

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