Justices' Voting Patterns — 2005-06 Term

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

The 2005-06 term of the Court is the first of the Roberts Court, terms of the Court being identified by the presiding Chief Justice. It is also the first that operated largely without the often-moderating influence of Justice O'Connor, replaced by Justice Alito on January 31, 2006. Alito and Roberts are expected to be strong conservative votes and their performance in the 2005-06 term did nothing to dispel that expectation.

In the table that follows are votes on those nonunanimous cases from the 2005-06 term involving Constitutional issues that lend themselves to a conservative-liberal interpretation. (See The Justices page for a description and explanation of the use of conservative and liberal labels in discussing the ideologies of the justices.) 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 23 cases and Stevens is listed first, having voted in the liberal direction on all but one. Three 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, Ginsburg has four conservative-direction votes, but two of them are followed by another string of liberal-direction votes before the final two conservative votes in the bottom two cases. Her raw score is 19/23 (i.e., 83%), reflecting her 4 conservative votes, but her position score is 21/23 (i.e., 91%), which dismisses 2 conservative votes embedded in a string of votes that otherwise are liberal. The winning % row tallies the percentage of cases in which the justice voted with the majority. The two C+ and C- scores in the table represent concurring opinions in which the rationale differed significantly from the plurality or majority opinion in either a more conservative (+) or a distinctly less conservative (-) direction.

In the table above, it is clear that four justices exhibit a strong tendency to agree with positions on judgments that are more conservative than liberal: Thomas, Scalia, Alito, and Roberts. Somewhat less cohesive is another group of four that tend to see things from a more liberal perspective: Stevens, Ginsburg, Souter, and Breyer. Justice Kennedy is more often found on the conservative side of judgments, casting votes in the liberal direction only 30% of the time.

Another way of summarizing the votes of justices is to see how frequently each pair of justices vote for the same outcome. The table below summarizes that information for nonunanimous cases. As previously noted, over half the cases in the 2005-06 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.

To distinguish conservatives from liberals, it can be helpful to first identify the most straightforward of the four ideologies mentioned above — the libertarians. Libertarians seek to minimize government restraints and interference in citizens' lives, maximizing the freedom of individuals to do as they wish. Both liberals and conservatives have a libertarian streak. Conservatives prefer individual liberty to instances in which governments attempt to enforce economic and social equality or constrain powerful economic forces in the name of greater democracy, but they are willing to limit liberty when governments impose order and dominant social mores. Liberals are pretty much the opposite, favoring social and economic equality over unfettered economic liberties but individual liberties over government imposition of dominant social mores.

Take for example the case of Gonzales v. Oregon (2006), in which the Attorney- General of the United States and the Bush administration attempted to effectively nullify Oregon's assisted-suicide law. Libertarians would oppose this interposition of the federal government on the more local state government and they would oppose any government restrictions on an individual's capacity to make such a personal decision. Like libertarians, liberals would support the right of the individual to make this personal choice of life or death, although unlike libertarians they would support government controls designed to protect individuals in the making of such a choice. Conservatives would generally oppose assisted-suicide altogether as a violation of social and religious customs in this nation and would accept government efforts to prevent it. A cross-cutting issue here is federalism. The libertarian perspective of both conservatives and liberals would favor state v. federal authority, but both groups will use federal authority to secure their moralistic passions. In the Oregon case, Scalia, Thomas, and Roberts argued unsuccessfully that federal control trumped the voter-approved state efforts to provide for assisted-suicide. Stevens, Ginsburg, Souter, Breyer, Kennedy, and O'Connor sided with Oregon in putting down the federal conservative challenge.

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