The Justices

List of All Justices

As of 2009 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 and Voting | Voting Blocs | Kennedy and Roberts

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 establishes 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 their ideological predilections, 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 term, three-eights of the cases in 2006-07, and one-third of those in the 2007 term 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. 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.

Ideological Interpretive Voting Outcomes

Pop-up tables are available here involving Court votes on Constitutional issues that lend themselves to conservative-liberal distinctions. 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. For the 2006-07 term, 30 cases are identified and Stevens is listed first, having voted in the liberal direction on all but one of those cases. Alito voted in a liberal direction only 2 times, marking him as the most conservative justice for 2006-07, though Thomas, Scalia, and Roberts were right there with three liberal votes out of the 30 cases. The result is an ordering of the justices from most liberal to least liberal (most conservative), Stevens and Ginsburg being the most liberal, with little to distinguish the conservative bloc of four.

This table 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%.

Last year's 2007-08 term produced modest changes. The Guttman-scaled table of liberal/conservative cases reveals a set of cases almost evenly split in outcome, 14 liberal outcomes and 16 conservative outcomes. This is reflected by Justice Kennedy's score of 50%. One should not interpret these results as reflecting any change in the Court. The conservative group did not somehow become more liberal. These changes reflect the issues brought by the specific set of cases, for the most part providing fewer clear-cut liberal-conservative issues than in 2006-07. Ginsburg remains the most liberal justice, but this time joined by Souter rather than Stevens, who had some interesting alliances with the conservative bloc in Irizarry v. US, Medellin v. Texas, and Crawford v. Marion County Election Board. Thomas came in as the most conservative member of the Court.

Voting Agreements

That the Court may be characterized by two distinct voting blocs is clear, a liberal bloc of four, a consevative bloc of four, with the balance most often tipped in a conservative direction by Kennedy. These blocs are also evident in the voting agreement pop-up tables for 2006-07 and 2007-08. In the 2006-07 agreements table, the lower left diagonal shows the voting agreement for each pair of justices among those 30 cases with identifiable ideological issues. The Roberts-Alito pair voted alike in all but one (97%) of the cases, as did the Stevens-Ginsburg pair, albeit the two pairs were mostly in opposition to each other.

The upper right diagonal of the table displays agreement scores across all nonunanimous cases decided by the Court. 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%.

While these ideological extremes are more muted in the voting agreements table for 2007-08, quite notable are the strong voting pairs of Roberts and Alito (87% ideological agreement), mirrored on the liberal side by Ginsburg and Souter, and the 83% agreement between Thomas and Scalia. While these numbers are less than in the previous term, the conservative and liberal blocs of four remain, and Kennedy still sits in the middle, ready to tip the balance in any 4-4 conservative/liberal splits that may occur.

Overall, however, 2006-07 presented a set of cases with less distinct ideological positions, resulting in uncommon voting alignments. While the 2006-07 term produced 26 5-4 decisions, 20 of which pitted the conservative bloc against the liberal with Kennedy being on the winning side in all 26, the 2007-08 term had only 11 5-4 decisions, 9 of which contained an identifiable ideological issue. [One case (Stoneridge) was a 5-3 split with Kennedy and the conservative bloc forming the majority.] Kennedy formed the majority in 8 of those 9 cases, along with one other that split by the blocs but which did not seem to address a clear-cut ideological issue (Sprint Com. v. APCC Services). The most interesting 5-4 split was in U.S. v. Santos, which found Thomas and Scalia joining Ginsburg, Souter, and Stevens, a rare combination indeed.

Kennedy and Roberts

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. For the 2006-07 term, 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. Kennedy's winning ways declined in the 2007-08 term, losing out in 8 of the 46 nonunanimous decisions for an 83% winning margin, now eclipsed by the Chief Justice with 7 losing votes in 45 cases for an 84% winning score. Nonetheless, in the 5-4 cases, Kennedy was in the majority in 8 of 12 and 8 of the 9 that posed identifiable conservative/liberal distinctions.

In 2006-07, 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. In 2007-08, Roberts was in the minority only seven times and five of those were in 5-4 cases. It seems likely that the Chief Justice engages in strategic voting. Only when in the majority can the Chief Justice assign responsibility for writing the opinion of the Court. By joining the majority when an outcome is not otherwise in play, the Chief Justice maximizes his power.

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Last update: January 5, 2009