Balkinization: Supreme Predictions

Supreme Predictions

Lee Epstein

Jan Crawford Greenburg's Supreme Conflict ends with a bang. She tell us that George W. Bush has succeeded in creating a Court that not only is "more conservative than any other in the half century" but also "will be shaping the direction of American law and culture" for the foreseeable future.

I admire Ms. Greenburg's book. It's smart, insightful, and, best of all for social scientists, a font of potentially interesting hypotheses—especially about group dynamics on the Court. Nonetheless, I have my doubts about the twin claims in her conclusion. According to the best available indicator of the justices' ideology—Andrew Martin and Kevin Quinn's ideal point estimates—the Roberts Court is hardly the most conservative in the last half century. It's not even close. In about half the terms since 1953 the median justice was more conservative than the Court's current key player, Justice Kennedy. There was Byron White in 1972, Lewis Powell in 1986, and Justice Souter in his first and most right-leaning term, 1990, to name just a few. Actually, Kennedy is far closer to the "average" swing for the entire period than he is to the most conservative medians of the past five decades.

Only if we ignore entire eras of the 20th century—e.g., the Burger Court—and focus exclusively on the liberal Warren years is the Roberts Court more conservative than any other. But even for that period we observe more right-leaning medians than Kennedy, including Felix Frankfurter in 1955, Tom Clark two terms later in 1957, and Potter Stewart in 1960.

Which brings me to the book's takeaway: that Bush has moved the Court to the right. I'm not altogether convinced. At the moment, Bush has only succeeded in shifting the middle of the Court from O'Connor back to Kennedy (holder of the swing position in 1993, 1995-1998). That shift may have consequences for particular areas of the law (though perhaps in both directions) but it hardly strikes me as a wholesale remake of the Court.

In the longer term, Ms. Greenburg may be right. But only if a member of the Court's left wing departs and Bush succeeds in appointing a replacement to the right of Kennedy (thereby moving the the median from Kennedy to the new justice or Roberts/Alito) and if no member of the right wing drifts to the left.

That's a lot of ifs—though perhaps not too many for Ms. Greenburg. Recently, she expressed guarded optimism about the President's ability to make a successful (extreme) right-of-center appointment. Our statistical model, designed to predict senators' votes, however, may leave Bush supporters less sanguine. Ms. Greenburg also seems rather convinced that Alito and Roberts, unlike, say, Harriet Miers, are unlikely to move to the left. But recent empirical work on ideological drift is more in line with Linda Greenhouse's observation of some 15 years ago, "A Justice's first year on the Court, or even first few years are notoriously poor indicators of that Justice's eventual role."

Ms. Greenhouse was, prophetically enough, referring to Justice Souter, whose now-legendary shift to the left is memorialized in the conservative battle cry, "No More Souters." More to the point, as Ms. Greenhouse has written elsewhere and again as statistical work now confirms, Souter is hardly alone. If even Chief Justice Rehnquist could drift left, as he did, I wouldn't want to offer forecasts about the Court's two newest members—at least not without any degree of uncertainty. Then again, perhaps that's why I'm a political scientist and not a best-selling author!

Posted 10:30 AM by Lee Epstein [link]

Comments:

Good stuff. I pretty much agree with Prof. Epstein, but it would be interesting to know how *much* Rehnquist moved to the left (I can't imagine it was too far: he was, apparently even as late as 1993 "extremely conservative" (Spaeth/Segal) so how much does a move to the left any mean???). In any event, while I also agree that a first year(s) on scotus is not a good predictor of subsequent ideology, one gets the feeling that Alito and Roberts are true-blue . . .

# posted by

Calvin TerBeek : 1:52 PM

If Mr. Bush gets another opportunity to appoint a Justice, I agree that the opposition would be fierce. This is the vote which would could overturn Roe and cement a conservative majority for another decade.

I would suggest that Mr. Bush appoint Judge Janice Rogers Brown. This would appoint a libertarian to the Court and force the Dems to squirm trying to "Bork" a female African American.

# posted by

Bart DePalma : 3:49 PM

I'm not sure I understand this analysis. In the 15 years before President Bush made his appointments, the center of the Court was either SO'C or AMK. Definitionally, in cases where SO'C was at the center, AMK was on the right, and vice versa, since there are four consistently liberal votes on this analysis (JPS, DS, RBG, SGB) and three conservatives (AS, CT, WHR).

The President's appointments have changed the Court in the following way: in cases in which SO'C was the swing vote, AMK is now the swing vote. Those were all cases in which AMK was with the conservatives (see above), putting AMK to the right of SO'C, so those cases now all come out more conservatively. And as the post explains, SO'C was the swing Justice for more years than was AMK over the 15-year period before the President made his appointments. In cases in which AMK was the swing vote (and thus SO'C was with the conservatives, see above), nothing has changed.

Thus there is a set of cases in which conservatives are better off with the '07 Court than they were with the '97 Court, and no cases in which they are worse off. Surely, then President Bush has moved the Court to the right.

If so, it seems to me that Professor Epstein might qualify his analysis by saying that the comments in Supreme Conflict are too broad--that indeed President Bush has moved the Court to the right, but it may be no more right-leaning now than it was in the Burger years.

# posted by

Unknown : 6:21 PM

I don't view Souter as a liberal. I think he is a justice in the mold of O.W. Holmes, Jr. The liberal and conservative labels have become skewed as a result of the distortions that have been propagated by the right wing echo chamber.

Janice Rogers Brown would fit right in with the tokenism that has characterized the Bush Administration's appointment process.

Their policies often screw people of color but who cares about that when conservatives can point to tokens like Rice and Powell.

# posted by

Rich : 2:14 AM