Ideological drift among supreme court justices: Who, when, and how important?

Northwestern University Law Review

Volumn 101, Issue 4, 2007, Pages 1483-1541

  Epstein, Lee ^a,b   Martin, Andrew D ^c   Quinn, Kevin M ^d,e   Segal, Jeffrey A ^f  

^a Department of Law ^*

^b NORTHWESTERN UNIVERSITY   (United States)

^c WASHINGTON UNIVERSITY   (United States)

^d HARVARD UNIVERSITY   (United States)

^e Center for Advanced Studies in the Behavioral Sciences

^f STONY BROOK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 37749013683     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (263)

1. 126 S. Ct. 2749(2006).
2. The vote in Hamdan was five to three. Because he served on the appellate court panel that had upheld the commissions, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005),
3. Chief Justice Roberts recused himself. Had he participated, many commentators assume he would have once again supported the administration. See, e.g., Cass Sunstein, The Court's Stunning Hamdan Decision, NEW REPUBLIC ONLINE, June 30, 2006, http://www.tnr.com/ ("The current Court itself remains badly divided. We should emphasize that Hamdan was decided by a narrow margin of 5-3, and we should not neglect the fact that Chief Justice Roberts did not participate in the decision; the reason is that he was part of the three-judge lower court, now reversed, which had ruled broadly in the President's favor.").
4. For example, the five-to-four decisions in Kelo v. City of New London, 545 U.S. 469 (2005) (taking of property for economic development does not violatc the "public use" restriction of the Fifth Amendment's Takings Clause);
5. Roper v. Simmons, 543 U.S. 551 (2005) (the Eighth Amendment prohibits the imposition of the death penalty for crimes committed when the defendant was under the age of eighteen);
6. Grutter v. Bollinger, 539 U.S. 306 (2003) (a law school's use of race in admissions decisions does not violate the Fourteenth Amendment's Equal Protection Clause).
7. Commentary on Hamdan and the ideological composition of the Court appears on numerous blogs, See, e.g., John Eastman, Five, Wrong on Hamdan: An NRO Symposium, NAT'L REV. ONLINE, June 30, 2006, http://article.nationalreview.com/?q- NzZmOTBhMzFlY2VlMzI5NjYyNzMzZWVlNTA wNzZhMWM- ("The Mystery Five [Justices] have simply practiced once again the utterly lawless will-fulness that they have proclaimed to be their mission. And they undoubtedly know that they will receive ample cover, in the form of fawning accolades, from legal academia and the liberal media."); Today's Hamdan Decision, Applied Epistemology, http://applicdcpistcmology.com/node/96 (June 30, 2006, 4:36 PM) ("The scary lesson that Hamdan teaches us is that the only thing currently standing between American democracy and an executive branch autocracy is John Paul Stevens' bath mat.").
8. We develop these points infra Part II.A;
9. see also infra note 25.
10. Suffice it to note here that the claim of ideological consistency not only appears in commentary on the Court but undergirds many important theories of judicial decisions, or at least tests of those theories. Consider "separation of powers" theories, which suggest that the Court takes into account the preferences and likely actions of Congress when it interprets statutes. The typical assumption is that the sincere preferences of the Court do not change unless the center of the Court (the median) changes as a result of membership turnover. See, e.g., William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 378 (1991);
11. William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CAL. L. REV. 613, 643-45 (1991);
12. Pablo Spiller & Rafael GeIy, Congressional Control of Judicial Independence: The Determinants of U.S. Supreme Court Abbreviations Decisions, 949-1988, RAND J. ECON. 463, 466 (1992) (all three detailing how the Court's sincere or raw preferences move with membership changes but explaining why the Court
13. may not act on those preferences). Likewise, some adherents of the attitudinal model of judicial decisions, which holds that Justices vote on the basis of their ideologies, describe attitudes as "relatively enduring." See DAVID W. ROHDE & HAROLD J. SPAETH, SUPREME COURT DECISION MAKING 75 (1976).
14. The proverb is "Once a thief, always a thief,"
15. David A. Strauss, It's Time to Deal with Reality: The Myth of the Unpredictable Supreme Court Justice Debunked, CHI. TRIB., Aug. 7, 2005, at C9.
16. See infra Part II.A.
17. Louis Kohlmeier, Thurgood Marshall Chosen for High Court; First Negro Will Bolster Liberal Segment, WALL ST. J., June 14, 1967, at 3.
18. See Theodore W. Ruger, Justice Harry Blackmun and the Phenomenon of Judicial Preference Change, 70 MO. L. REV. 1209, 1220 (2005) ("[A] small but emerging body of empirical literature suggests that preference change is a phenomenon which affects many Justices over the course of their careers.").
19. See also infra Part II for a review of studies suggesting that Justices change over time. In a post on his blog, Balkinization, on March 6, 2007, Jack Balkir wrote that he "coined the term [ideological drift] back in 1990 to describe the changing political valence of certain ideas and policies as they are repeatedly introduced into new contexts." He went on to note that in this Article, we use "the term in an importantly different way-to describe how particular Justices move from the left to the right or the right to the left during their years on the Supreme Court." Posting of Jack Balkin to Balkinization, http://balkin.blogspot.com (Mar. 6, 2007, 6:39 PM). Professor Balkin is correct; that is precisely how we are using the term.
20. John A. Jenkins, A Candid Talk with Justice Blackmun, N.Y .TIMES, Feb. 20, 1983, at 26.
21. See, e.g., LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN'S SUPREME COURT JOURNEY 235 (2005) (presenting data documenting Justice Blackmun's movement):
22. Ruger, supra note 10, at 1212 ("[D]iverse evidence suggests that . . . Blackmun significantly changed.");
23. Note, The Changing Social Vision of Justice Harry A. Blackmun: The Conscientious Conscience, 96 HARV. L. REV, 717, 717 (1983) ("Harry A. Blackmun has undergone a remarkable transformation").
24. Furman v. Georgia, 408 U.S. 238, 405 (1972) (Blackmun, J., dissenting).
25. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).
26. See, for example, Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045 (2001), who explain their "theory of partisan entrenchment" in the following terms: When a party wins the White House, it can stock the federal judiciary withmembers of its own party, assuming a relatively acquiescent Senate. They will serve for long periods of time because judges enjoy life tenure. On average, Supreme Court Justices serve about eighteen years. In this sense, judges and Justices resemble Senators who are appointed for 18-year terms by their parties and never have to face election. They are temporally extended representatives of particular parties, and hence, of popular understandings about public policy and the Constitution. The temporal extension of partisan representation is what we mean by partisan entrenchment.
27. Id. at 1067 (internal citations omitted). As other scholars have recognized, a finding of widespread preference change would present a serious challenge to theories of partisan or ideological entrenchment.
28. See, e.g., LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENT 141 (2005) ("Whether or not packing the courts is a laudable goal, a variety of factors can conspire against Presidents seeking to achieve it," including "changing attitudes.");
29. Ruger, supra note 10, at 1211 ("The possibility that judicial preferences might vary significantly over time compels reconsideration of . . . entrenchment theory.").
30. 539 U.S. 306 (2003).
31. See. e.g., Robert E. Riggs, When Every Vote Counts: 5-4 Decisions in the United States Supreme Court, 1900-90, 21 HOFSTRA L. REV. 667, 701 (1993) ("[A]ssigning ideological labels" is appropriate because "during most Terms, most Justices voted consistently with their labels.");
32. Ruger, supra note 10, at 1209-10 ("We are fond of putting our [Justices] into neat adjectival boxes. . . . These typologies often reflect perceived attitudinal or ideological preferences: some Justices are called 'liberal' or 'conservative' or 'moderate.' . . . But efforts to describe and classify the Justices . . . often rely . . . on the idea that once a Justice is properly pegged, his or her ideology . . . is not expected to evolve much.");
33. Richard G. Wilkins et al.. Supreme Court Voting Behavior: 2003 Term, 32 HASTINGS CONST. L.Q. 769, 776 (2005) ("[B]oth the media and academicians are fond of attaching ideological labels to the Court and its personnel.").
34. A Fight Worth Having, WALL ST. J., Nov. 1, 2005, at A16.
35. Another Lost Opportunity, N.Y. TIMES, Nov. 1, 2005, at A26.
36. Hot Topic: Stare Indecisis, WALL ST. J., Jan. 14, 2006, at A8.
37. Senators in Need of a Spine, N.Y. TIMES, Jan. 26, 2006, at 22A.
38. The editorial continued: "A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court." Id.
39. See infra Part II.B.
40. See infra Part II.B.
41. President George W. Bush, Press Conference (Oct. 4, 2005) (transcript available at http://www.whitehouse.gov/news/releases/2005/l 0/20051004-1.html).
42. Ruger, supra note 10, at 1218, deems the assumption of preference stability "near-hegemonic." With the scattered exceptions we review in infra Part II.B, we wholeheartedly concur with Ruger's sentiment. The assumption lies at the core of many theories of judicial decisionmaking, or at least the tests of those theories.
43. For examples, see supra note 5, as well as Ruger, supra note 10, at 1217-18. It has been repeated in many scholarly studies of the Court, as well as in more informal commentary.
44. See, e.g., GLENDON SCHUBERT, THE JUDICIAL MLND REVISITED 159 (1974) (presents data showing a high level of stability in voting for Justices serving from 1946 to 1968);
45. Lawrence Baum, Measuring Policy Change in the U.S. Supreme Court, 82 AM. POL. SCI. REV. 905, 907 (1988) (develops a method for assessing policy change based on the assumption that Justices' preferences "remain[] constant throughout [their] career");
46. Strauss, supra note 7.
47. Actually, prior to her service on the U.S. Court of Appeals for the District of Columbia, Justice Ginsburg was a prominent and unabashed supporter of women's rights and a pro-choice advocate. Among her many writings on these subjects are The Equal Rights Amendment is the Way, 1 HARV. WOMEN'S L. 19 (1978),
48. and Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 WASH U. L.Q. 161(1979).
49. For analyses of the effect of ideology or partisanship on judging at the federal appellate level, see CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL: AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY (2006);
50. Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998).
51. For example, on the attitudinal model of judging, Justices vote on the basis of their sincerely held ideological attitudes in cases before them. Freeing Justices from considerations other than ideology, according to attitudinalists, is the lack of electoral accountability and ambition for higher office, the control they enjoy over their agenda, and the dearth of judicial superiors. See JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86, 93-96 (2002) explaining that the attitudinal "model holds that the Supreme Court decides disputes in light of the facts of the case vis-a-vis the ideological attitudes and values of the [J]ustices" and providing reasons why Justices are free to vote their sincere preferences).
52. To derive the figure of thirty-six, wc count Chief Justice Rehnquist only once.
53. Data in this paragraph are derived from LEE EPSTEIN ET AL., THE SUPREME COURT COMPFNDIUM. tb1.4-12 (2007).
54. Justice Breyer at Harvard, 1967-70; Justice Ginsburg at Rutgers, 1963-72, and Columbia. 1972 80; and Justice Scalia at Virginia, 1967-74, and Chicago, 1977-82. We include in our calculation only full-time service. Justice Alito served as an Adjunct Professor at Seton Hall, 1999-2004; Justice Kennedy lectured at the University of the Pacific, 1965-68; and Chief Justice Roberts was an adjunct at Georgetown in 2005. Justice Stevens lectured at Northwestern, 1950-54, and Chicago, 1954-58.
55. See supra notes 18 21.
56. The Court Nominations, N.Y. TIMES, Oct. 22, 1971, at 38.
57. Sec infra Figure 1.
58. We computed the figures in this paragraph from Harold J, Spaeth's U.S. Supreme Court Database, with analu=0 and dec\_type=l, 6, or 7. The S. Sidney Ulmer Project for Research in Law and Judicial Politics, U.S. Supreme Court Databases, http://www.as.uky.edu/polisci/ulmerproject/sctdata.htm (last visited May 17, 2007).
59. According to Spaeth's database, in the 2005 term Alito supported criminal defendants in 16.7% of twelve cases in which he participated; he supported civil rights plaintiffs in three of five cases. Id. See also infra Figure 19.
60. Jeffrey A. Segal et al. analyze and summarize editors' initial characterizations of the Supreme Court nominees. They create their editors' ideology scores by analyzing the content of editorials in four newspapers - two with liberal leanings and two, conservative - between the time the Justice is nominated and the Senate's vote. The resulting scores range from 0 (very conservative) to 0.5 (moderate) to 1 (very liberal).
61. Jeffery A. Segal et al., Perceived Qualifications and Ideology of Supreme Court Nominees, 1937-2005, http://ws.cc.stonybrook.edu/polsci/jsegal/qualtable. pdf. Segal and Cover initially developed them in Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of Supreme Court Justices, 83 AM. POL. SCI. REV. 557 (1989);
62. an updated version appears in EPSTEIN & SEGAL, supra note 15, at 110. We computed the votes cast by Justices from Spaeth, supra note 35.
63. See supra note 37.
64. We derived the votes from Spaeth, supra note 35. Conservative votes are those against defendants in criminal cases; women and minorities in civil rights cases; individuals (against the government) in First Amendment, privacy, and due process cases; unions (over individuals) and individuals (over business) in labor cases; and the government (over businesses) in economic regulation litigation. Liberal decisions are the reverse.
65. See supra notes 35, 37, and 39 for information about the data depicted in Figure 1.
66. We adapt the discussion in this paragraph from EPSTEIN & SEGAL, supra note 15, at 126-27.
67. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
68. Strauss, supra note 7.
69. Chief Justice Roberts's score of .120 is slightly less conservative than Chief Justice Burger's (.115) and slightly more liberal than Justice Thomas's (.160). For more details, see supra note 37 and Figure 1.
70. S. Sidney Ulmer, The Longitudinal Behavior of Hugo Lafayette Black: Parabolic Support for Civil Liberties, 1937-1971, 1 FLA. ST. U. L. REV. 131 (1973)
71. [hereinafter Ulmer, The Longitudinal Behavior of Hugo Lafayette Black];
72. S. Sidney Ulmer, Parabolic Support of Civil Liberty Claims: The Case of William O. Douglas, in COURTS, LAWS, AND JUDICIAL PROCESSES 397 (S. Sidney Ulmer ed., 1981).
73. Ulmer, The Longitudinal Behavior of Hugo Lafayette Black, supra note 45, at 144.
74. This is an attempt to reproduce Ulmer's analyses, supra note 45, using data from Lee Epstein et al., Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices, 60 J. POL. 801 (1998), available at http://epstein.law.northwestern.edu/research/ prefchange.html.
75. Epstein et al., supra note 47.
76. Id. at 812.
77. We calculated the percentages depicted in Figure 3 from Spaeth, supra note 35, with value ≤ 6, analu = 0, dec_type = 1, 6, or 7. See also supra note 39.
78. Epstein et al., supra note 47, attempt to account for changes in "issue stimuli," but the approach they use has its share of problems. Primarily, it is based on a method that assumes preference stability throughout a Justice's career. For more details, see the critique and reproduction of the Epstein et al. analysis in Andrew D. Martin & Kevin M. Quinn, Assessing Preference Change on the U.S. Supreme Court, 23 J. L. ECON. & ORG. 365, 368-70 (2007).
79. Baum, supra note 25, at 905-06.
80. We adapt this example from Harold J. Spaeth, The Attitudinal Model, in CONTEMPLATING COURTS 306-07 (Lee Epstein, ed. 1995),
81. and Baum, supra note 25, at 905-06.
82. To keep the example simple we display only three Justices, but it easily generalizes to nine, and we could easily add cases.
83. See supra note 53.
84. See, e.g., Martha J. Dragich, Justice Blackmun, Franz Kafka, and Capital Punishment, MO. L. REV. 853, 854 (1998) ("Over the course of his thirty-five years as a judge, Justice Harry A. Blackmun seemed to change his views on the death penalty.");
85. Jeffrey B. King, Now Turn to the Left: The Changing Ideology of Justice Harry A. Blackmun, 33 HOUS. L. REV. 277, 278 (1996) ("Blackmun very well may have undergone one of the most marked ideological changes the United States has seen in a public figure during this century.");
86. see generally Ruger, supra note 10.
87. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. REV. 971, 974 n.9 (2000) (describing history of phrase "switch in time that saved Nine").
88. The literature along these lines is vast. As Barry Friedman puts it, "since 1937, scholars have debated what happened and why, combing the historical record in order to ascertain the motives of key players, such as Justice Owen Roberts, whose possible change of votes in key cases was 'the switch in time that saved Nine,'" Friedman, supra note 57, at 1048 (citation omitted).
89. As Friedman notes, "Many scholars simply assume a switch occurred." These days, only "legalists argue at least that no switch occurred in response to politics, and perhaps also that no switch at all occurred in 1937." Id. at 1050 n.361.
90. Justice Owen Roberts's response was not particularly informative but neither did he deny the move: "Who knows what causes a judge to decide as he does. Maybe the breakfast he had has something to do with it." Merlo J. Pusey, Justice Roberts' 1937 Turnaround, 1983 Y.B. SUP. CT. HIST. SOC'Y 106 (quoting Justice Roberts in a confidential interview conducted on May 31, 1946).
91. See, e.g., EPSTEIN & SEGAL, supra note 15;
92. DAVID ALISTAIR YALOF, PURSUIT OF JUSTICES (1999).
93. For more on the goals of Presidents when selecting Justices, see generally EPSTEIN & SEGAL, supra note 15;
94. SHELDON GOLDMAN, PICKING FEDERAL JUDGES (1997).
95. MARK SILVERSTEIN, JUDICIOUS CHOICES: THE NEW POLITICS OF SUPREME COURT CONFIRMATIONS 2 (1994).
96. EPSTEIN & SEGAL, supra note 15, at 121 ("[C]ertainly electoral considerations [played a role in Eisenhower's selection] of the Democrat and Catholic Brennan.").
97. See, e.g., Balkin & Levinson, supra note 15, at 1067-68.
98. Transcript of President's Announcement's, N.Y. TIMES, Oct. 22, 1971, at 24.
99. Roger B. Taney, Treasury in 1834;
100. Caleb Cushing, Treasury in 1843;
101. David Henshaw, Navy in 1844;
102. James M. Porter. War in 1844;
103. James S. Green, Treasury in 1844;
104. Henry Stanbery, Treasury in 1868;
105. Charles Warren, Justice in 1925;
106. Lewis Strauss, Commerce in 1959;
107. John G. Tower, Defense in 1989. U.S. Senate, Nominations, http://www.senate.gov/artandhistory/history/common/briefing/ Nominations.htm (last visited Aug. 14, 2007).
108. A list of candidates rejected by the Senate is available at U.S. Senate, Supreme Court Nominations, present-1789, http://www.senate.gov/pagelayout/ reference/nominations/Nominations.htm (last visited Aug. 14, 2007).
109. For more on this point, see EPSTEIN & SEGAL, supra note 15, at 31-34;
110. Jack Knight & Lee Epstein, On the Struggle for Judicial Supremacy. 30 LAW & SOC'Y REV. 87, 111 (1996) (claiming that Chief Justice John Marshall helped to avert the establishment of a norm of impeachment on ideological or partisan grounds);
111. MICHAEL J, GERHARDT, THE FEDERAL IMPEACHMENT PROCESS 110-11 (1996) (explaining why. at least as a practical matter, there can be no impeachment for "mere policy difference" (internal quotation marks omitted)).
112. See, e.g., Charles M. Cameron, Albert D. Cover & Jeffrey A. Segal, Senate Voting on Supreme Court Nominees: A Neoinstitutional Model, 84 AM. POL. SCI. REV. 525, 525 (1990);
113. Jeffrey A. Segal, Charles M. Cameron & Albert D. Cover, A Spatial Model of Roll Call Voting: Senators, Constituents, Presidents, and Interest Groups in Supreme Court Confirmations, 36 AM. J. POL. SCI. 96, 113-14 (1992).
114. Lee Epstein et al., The Changing Dynamics of Senate Voting on Supreme Court Nominees, 68 J. POL. 296, 301 (2006).
115. See, e.g., Balkin & Levinson, supra note 15, at 1066-83.
116. See, e.g., Gregory A. Caldeira & John R. Wright, Lobbying for Justice: Organized Interests, Supreme Court Nominations, and the United States Senate, 42 AM. J. POL. SCI. 499 (1998).
117. For evidence of the predictability of nominees during their first terms in office, see infra Figure 13.
118. Among the civil rights groups testifying against David H. Souter were the National Lawyers Guild, Supreme Court Watch, and Lambda Legal Defense and Education Fund. See Confirmation Hearings on the Nomination of Judge David H. Souter: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. 777-80, 783-85, 803-05 (1990) (statements of Haywood Bums, on behalf of the National Lawyers Guild; Christopher F.D. Ryder, on behalf of Supreme Court Watch; and Paula L. Ettlebrick, Legal Director, Lambda Legal Defense and Education Fund).
119. In the 2004 term, Chief Justice Rehnquist voted in favor of civil rights litigants in only 33% of the nine cases in which he participated; those figures for Justice Souter were 83.3% (N=12) and 91.7% for Justice Stevens (N=12). Figures are from Epstein et al., supra note 30, tbl.6-5.
120. See supra notes 5 and 25.
121. 126 S. Ct. 2749 (2006).
122. 410 U.S. 113 (1973).
123. See, e.g., Linda Greenhouse, Powell: Moderation amid Divisions, N. Y. TIMES, June 27, 1987, at 32 ("His vote was crucial in key areas. On abortion he remained committed, with a shrinking majority, to the 1973 precedent that established it as a constitutional right.").
124. Robin Toner, After a Brief Shock. Advocates Quickly Mobilize, N.Y. TIMES, July 2, 2005, at Al.
125. The same article reports the reaction of interest groups: "At the abortion rights group Naral Pro-Choice America, organizers were sending e-mail alerts to 800,000 activists within 15 minutes after the announcement of Justice Sandra Day O'Connor's resignation. 'Don't let Bush take away your choice!' they declared." Id.
126. 539 U.S. 306 (2003).
127. 428 U.S. 153 (1976).
128. 545 U.S. 469 (2005).
129. The Priest-Klein model of litigation predicts that plaintiffs only will go into litigation if they believe that they have roughly a fifty percent chance of winning. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 4-5 (1984). This prediction is contingent on the decision standard, the parties' uncertainty of estimating case quality, and the degree of stake asymmetry across the parties.
130. Some scholars, most notably, Jeffrey A. Segal, Measuring Change on the Supreme Court: Examining Alternative Models, 29 AM. J. POL. SCI. 461 (1985), have developed area-specific solutions; in Segal's case, Fourth Amendment search and seizure litigation. But we know of no work that satisfactorily tackles the problem across the range of legal areas.
131. Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 POL. ANALYSIS 134 (2002).
132. Not surprisingly, the products of the Martin-Quinn method-i.e., their ideal point estimates-have received a good deal of play both in the popular press and in scholarly journals. See, e.g., Barry Friedman & Anna L. Harvey, Electing the Supreme Court, 78 IND. L.J. 123, 134-36 (2003) (relying on the Martin-Quinn scores to measure the ideology of Justices in a study of whether the Supreme Court responds to ideological changes in Congress);
133. Ruger, supra note 10, 1227-28 (using the Martin-Quinn scores to "assess whether perceived attitudinal moderation or extremism at the time of nomination had any correlation with subsequent judicial drift");
134. Paul J. Wahlbeck, The Chief Justice and the Institutional Judiciary: Strategy and Constraints on Supreme Court Opinion Assignment, 154 U, PA. L. REV. 1729, 1754 (2006) (using the Martin-Quinn scores to show that the Court's median "grows significantly more conservative from the 1986 Term to the 1993 Term").
135. For media reports of their research as it was applied in subsequent publications, see, for example, Jess Bravin, Politics & Economics: High Court's Changes May Just Be First Act-More Striking Shift Could Ensue if Any of the Court's Four Remaining Liberal Justices Depart on Bush's Watch, WALL. ST. J., Feb. 1, 2006, at A4;
136. Charles Lane, Justices Too Tightlipped on Their Health?, WASH. POST, Nov. 1, 2004, at A19.
137. We too have deployed the Martin-Quinn scores in a study of the median Justice on the Supreme Court. See Andrew D. Martin et al., The Median Justice on the United States Supreme Court, 83 N.C. L. REV. 1275 (2005).
138. Martin and Quinn have even invoked them to analyze change on the Court for a limited set of Justices. Martin & Quinn, supra note 51, at 8-11,
139. Hence, in an effort to conserve space, we direct readers interested in learning more about the Martin-Quinn procedures to these other sources, as well as to web sites housing the data. All the data used in this Article is available at Lee Epstein: Ideological Drift Among Supreme Court Justices web page, http://epstein.law.northwestern.edu/research/ideodrift.html (last visited May 19, 2007). The Martin-Quinn estimates, as well as annual updates, are housed at http://mqscores.wustl.edu. See also supra notes 85, 86.
140. Because, as we mention in the text, the Martin-Quinn method has been described elsewhere, see Martin & Quinn, supra note 87, at 134,
141. suffice it to note here that their method simultaneously provides comparable estimates of ideal points and cut points (the midpoint between the status quo policy and the potential policy under review) by (1) exploiting the overlapping service records of Justices and (2) assuming that model parameters governing the cut points are drawn from a common distribution. For more details, see infra note 156, Overlapping service records allow for model-based comparisons of Justices who never served together. For instance, Martin and Quinn use the fact that Chief Justice Warren served with Justice Brennan, who served with Justice Scalia, to place the ideal points of Chief Justice Warren and Justice Scalia (who never served together) on a comparable scale. The approach achieves intertemporal comparability by assuming that ideal points can only change smoothly through time and that any voting records that are consistent with all Justices moving equally to the right or equally to the left are the result of changes in the cut points rather than Court-wide changes in preferences.
142. More specifically, Figures 5, 7, 9, and 12 depict the estimated ideal points over time for each Justice. To reach conclusions about ideological drift, we examined the preference change profiles for each Justice. Examples of these profiles appear in Figures 6, 8, and 10. The full complement is available on the project's web site, http://epstein.law.northwestern.edu/research/ideodrift. html, as is a description of the procedures we used to identify significant drift.
143. The four are Justices Breyer, Murphy, Stewart, and Thomas. See infra Part III.C.
144. Justices Blackmun, Brennan, Clark, Ginsburg, Kennedy, Marshall, O'Connor, Powell, Souter, and Stevens, and Chief Justices Rehnquist and Warren. See infra Part III. A.
145. Justices Black, Burton, Frankfurter, Jackson, Reed, Scalia, and White. See infra Part II.B.
146. Chief Justice Burger, and Justices Douglas and Harlan. See infra Part III.C.
147. Ruger, supra note 10, at 1212 (quoting Justice Harry A. Blackmun, Speech at Louisiana State University Law Center, Summer Program (July 6-9, 1992)).
148. For more details on the estimated ideal points, see supra notes 87-88.
149. See, e.g., Joan Biskupic, O'Connor Not Confined by Conservatism, USA TODAY, June 24, 2004. at 4A ("Although O'Connor usually votes with the [C]ourt's conservative wing, she increasingly has sided with liberals in significant cases that have been decided by 5-4 votes. It's led some conservative observers to wonder whether O'Connor, at 74, is turning to the left.");
150. Charles Rothfeld, The Court on Balance: By Sometimes Leaning Left, Justice O 'Connor Centers the Supreme Court, LEGAL TIMES, July 12, 2004, at 52 ("The liberals . . . dominated in the eight civil cases decided by 5-4 votes, winning six of them. O'Connor voted with the liberal majority in four of these cases.").
151. For an account of the Souter nomination, see YALOF, supra note 61, at 190-92.
152. On her blog, the conservative commentator Ann Coulter provides quote after quote attesting to Souter's conservative credentials at the time of his appointment. AnnCoulter.com, http://www.anncoulter.com (July 27, 2005). For example, according to Coulter, Newt Gingrich claimed that "[v]irtually every conservative who knows him trusts him and thinks he's a competent guy." Id.
153. Coulter also notes that National Right to Life's John Willke said, "(He) seems to be a judicial conservative, what we call a constitutional constructionist. . . . That's satisfactory with us, if that's true." Id.
154. See supra Figure 1 and supra note 37.
155. Using the Martin & Quinn scores, Martin et al., supra note 87, have calculated the Justice most likely to have been the median for each term. Souter is that Justice for the 1990 and 1991 terms, though the probability that he was the median is reasonably weak (.48 in 1990 and .34 in 1991). Id. at 1303.
156. See, e.g., Erwin Chemerinsky, The Rehnquist Court and the Death Penalty, 94 GEO. L.J. 1367, 1368 (2006) (placing Souter in the Court's "liberal wing");
157. Richard H. Fallon, Jr., The "Conservative" Path of the Rehnquist Court's Federalism Decision, 69 U. CHI. L. REV. 429, 448 n. 101 (2002) (deeming Souter a "liberal");
158. Scott P. Johnson & Robert M. Alexander, The Rehnquist Court and the Devolution of the Right to Privacy, 105 W. VA. L. REV. 621, 645 (2003) ("[Justice Souter has] surprised many conservatives with his moderate to liberal voting record.").
159. 539 U.S. 558 (2003).
160. 543 U.S. 551 (2005).
161. See, e.g., Lawrence Friedman, The Limitations of Labeling: Justice Anthony M. Kennedy and the First Amendment, 20 OHIO N.U. L. REV. 225 (1993) (arguing that Kennedy has become more liberal in some legal areas);
162. Thomas Sowell, Justice Kennedy's New Move Left: Soft on Crime, HUM. EVENTS, Aug. 18, 2003, http://humanevents.com.
163. Editorial, Toward a Rehnquist Court, N.Y. TIMES, June 18, 1986, at 34A.
164. See, e.g., Linda Greenhouse, William H. Rehnquist, Architect of Conservative Court, Dies at 80, N.Y. TIMES, Sept. 5, 2005, at 16A.
165. For example, Rehnquist's estimated ideal point in 1975 is 4.22 versus Thomas's, thirty years later in 2004, of 3.45.
166. See infra Figure 19.
167. For more detail on the estimated ideal points, see supra notes 87-88.
168. See, e.g., LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES 149 (2006) ("Among the nine Republicans who moved to Washington to join the Supreme Court, there were clear and substantial increases in liberalism in four and more limited or ambiguous increases for three others,");
169. Jon D. Hanson & Adam Benforado, The Drifters: Why the Supreme Court Makes Justices More Liberal, BOSTON REV., Jan./Feb. 2006, at 23 ("While there have been a number of relatively reliable conservative Justices over the years . . . the tendency in recent decades to drift leftward has been strong enough to gain both popular and scholarly attention.").
170. Harold J. Spaeth, The Judicial Restraint of Mr. Justice Frankfurter - Myth or Reality, 8 AM. J. POL. SCI. 22 (1964).
171. Henry J. Abraham, Line-Drawing between Judicial Activism and Restraint: A Centrist Approach and Analysis, in SUPREME COURT ACTIVISM AND RESTRAINT 201, 203 (Stephen C. Halpern & Charles M. Lamb eds., 1982) (emphasis added).
172. Spaeth's claim grows out of Spaeth, supra note 111, but appears in SEGAL & SPAETH, supra note 28, at 409 n.6.
173. GERALDT. DUNNE, HUGO BLACK AND THE JUDICIAL REVOLUTION 413 (1977).
174. James F. Simon, Judging the Justices, 49 STAN. L. REV. 173, 176 (1996).
175. See also Jed Handelsman Shugerman, A Six-Three Rule, 37 GA. L. REV. 893, 922 (2003) ("From 1962 to 1969, the liberals gained their fifth vote, first with Arthur Goldberg and then Abe
176. D. Wes Sullenger, Burning the Flag: A Conservative Defense of Radical Speech and Why It Matters Now, 43 BRANDEIS L.J. 597, 619 (2005).
177. David D. Meyer, Justice White and the Right of Privacy: A Model of Realism and Restraint, 52 CATH. U. L. REV. 915, 915 (2003) ("popular accounts" portray "White as the increasingly conservative curmudgeon on matters of individual liberty, wielding traditional morality or his own crusty predilections to repel the claims of modern society");
178. David O. Stewart, White to the Right?, A.B.A. J. July 1990, at 40 (arguing that Justice White assumed more conservative positions over time);
179. Jeffrey Rosen, The Next Justice, NEW REPUBLIC, Apr. 12, 1993, at 21, 24 (arguing that White moved to the ideological right).
180. Lee Epstein, Jack Knight & Andrew Martin, The Supreme Court as a Strategic National Policy Maker, 50 EMORY L. J. 583, 605-07 (2001).
181. For more detail on the estimated ideal points, see supra notes 87-88.
182. Craig M. Bradley & Joseph L. Hoffmann, "Be Careful What You Ask For": The 2000 Presidential Election, the U.S. Supreme Court, and the Law of Criminal Procedure, 76 IND. L.J. 889, 893 (2001) (deeming Burger a "consistent conservative");
183. Eric M. Freedman, A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Communications Technologies Make it Particularly Urgent for the Supreme Court to Abandon Its Inside-Out Approach to Freedom of Speech and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment, 81 IOWA L. REV. 883, 968 n.171 (1996)
184. ("Chief Justice Burger and his conservative colleagues clearly wished to tighten legal controls on obscenity . . . ." (quoting Joel Feinberg, Pornography and the Criminal Law, 40 U. PITT. L. REV. 567, 600 (1978)));
185. Mark V. Tushnet, The Supreme Court and Race Discrimination, 1967-1991: The View from the Marshall Papers, 36 WM. & MARY L. REV. 473, 482 n.47 (1995) ("Chief Justice Burger, of course, had more conservative instincts than many of the Justices on the Court when he arrived . . . .").
186. LEE EPSTEIN & THOMAS G. WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA: RIGHTS, LIBERTIES AND JUSTICE 807 (6th ed. 2007) (deeming the Burger and Rehnquist Courts "Republican Court Eras");
187. Rebecca E. Zietlow, To Secure These Rights: Congress, Courts and the 1964 Civil Rights Act, 57 RUTGERS L. REV. 945, 990 (2005) ("the Court took a more conservative turn under the leadership of Burger and Rehnquist").
188. But see Frank B. Cross & Stefanie Lindquist, The Decisional Significance of the Chief Justice, 154 U. PA. L. REV. 1665, 1686 (2006) ("Justice Rehnquist is regarded as more conservative than Justice Burger. . . .").
189. See GREENHOUSE, supra note 12.
190. For more detail on the estimated ideal points, see supra notes 87-88.
191. For more detail on the estimated ideal points, see supra notes 87-88.
192. For example, in the 1947 term, Black was the most liberal, with an estimated ideal point at 1.727; Murphy's was-1.640.
193. See infra Figure 19.
194. David S. Broder, Doing Justice to the Poor, WASH. POST, June 24, 1981, at A2I ("The fact that the President, who does not see any compelling need for the continuation of the Republican-created program of legal services for the poor, is the same President who will soon be filling Potter Stewart's 'swing seat' on the Supreme Court is something to give you pause.");
195. Stuart Taylor, Jr., Rather an Unknown, N.Y. TIMES, July 8, 1981, at 13A ("[I]t appears to be far too early to determine whether the ideologically divided Court will become more conservative or more liberal if Judge O'Connor fills the vacancy created by the retirement of Justice Potter Stewart, who has been viewed as a moderate leaning to the conservative side of the Court's delicate philosophical balance.");
196. Steven R. Weisman, Reagan Nominating Woman, N.Y. TIMES, July 8, 1981, at 1A ("White House officials were hopeful that Judge O'Connor's appointment could be historic not only because she is a woman but also because her presence on the Court, as a replacement for Associate Justice Potter Stewart, who was often a swing vote between ideological camps on the Court, could shift the Court's balance to the right.").
197. Worth noting is that Stewart himself rejected the title "swing Justice." When asked at a news conference before his retirement, "You are regarded as a 'swing' Justice, one whose opinions are not easily predictable. Do you think you should be succeeded by someone like that?" Stewart responded: "I've never thought of myself as a swing Justice. I've thought of myself as deciding every case correctly, and I've never thought in terms of putting a label on myself . . . ." Stewart's Session with Reporters, N.Y. TIMES, June 20, 1981, at 9.
198. Computed using Spaeth, supra note 35, with dec_type=l, 6, or 7; analu=0; and value < 6.
199. See infra Figure 19.
200. See, e.g., Terry Bowen & John M. Scheb, II, Reassessing the "Freshman Effect": The Voting Bloc Alignment of New Justices on the United States Supreme Court, 1921-90, 15 POL. BEHAV. 1 (1993);
201. Timothy M. Hagle, "Freshman Effects" for Supreme Court Justices, 37 AM. J. POL. SCI. 1142 (1993);
202. J. Woodford Howard, Justice Murphy: The Freshman Years, 18 VAND. L. REV. 473 (1965).
203. See Epstein et al., supra note 118, at 607.
204. These include context (the Justices push and pull each other to the right or left), public opinion (the Justices fluctuate in line with the public's ideological mood), election returns (the Justices follow the election returns), and the "Greenhouse" effect (Justices move to the left to win the approval of the New York Times's Supreme Court reporter, Linda Greenhouse).
205. See, e.g., Ruger, supra note 10;
206. BAUM, supra note 110;
207. Ulmer, The Longitudinal Behavior of Hugo Lafayette Black, supra note 45;
208. Epstein et al., supra note 47.
209. To derive Figure 13 we use linear regression to predict the Martin-Quinn estimates of Justices in the first and tenth terms using newspaper editors' assessments of the Justices' ideologies at the time of appointment, see Figure 1. The table below presents the results (standard errors are in parentheses); a visual depiction of this relationship appears in Figure 13.
210. See supra note 133.
211. For more detail on the actual (Martin-Quinn) estimated ideal points, see supra notes 87-88;
212. for information on the editors' assessments, see supra note 37.
213. We generated the predictions via Clarify software. See Gary King, Michael Tomz & Jason Wittenberg, Making the Most of Statistical Analyses: Improving Interpretation and Presentation, 44 AM. J. POL. SCI. 347 (2000) (providing information on the authors' Clarify software).
214. Further, the most notable departures from the regression line are for Justices predicted to be at the extremes of the ideological spectrum. This is largely due to the fact that the editorial predictions are bounded above and below, with many Justices at either the maximal or minimal value, while the MartinQuinn ideal points are theoretically unbounded. In other words, much of the variability in the plot is likely an artifact of the scaling of the x and y variables.
215. We estimated this prediction using Clarify, King, Tomz & Wittenberg, supra note 135. The 95% confidence interval is [1.05, 2.33].
216. The table depicted in supra note 133 confirms this visual analysis more formally. Note that the slope estimate is quite similar in both the first-term and tenth-term regressions. The residual standard error, however, increases from 1.021 in the first-term regression to 1.402 in the tenth-term regression. In other words, the predicted error around the regression line increased by 37.3% after ten terms.
217. As shown in the plots below, Justice Douglas and Chief Justice Rehnquist, on the other hand, were both more conservative and more liberal.
218. We base this claim on Poole's NOMINATE Common Space scores. See generally Keith T. Poole, Recovering a Basic Space from a Set of Issue Scales, 42 AM. J. POL. SCI. 954 (1998) (providing a scaling algorithm for generating an ideal point for all representatives, senators, and Presidents in two-dimensional Downsian issue space). The scores are available on Poole's website. Data Download Front Page, http://voteview.com/ dwnl.htm (scroll to 4. Common Space Scores) (last visited May 20, 2007).
219. See Poole, Data Download Front Page, supra note 140.
220. See supra Figure l.
221. Justices James Byrnes, Wiley B. Rutledge, Fred Vinson, Sherman Minton, Charles Whittaker, Arthur Goldberg, and Abe Fortas.
222. The five are Justices Breyer, Burton, Ginsburg, Jackson, and Murphy.
223. See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J. L. & PUB. POL'Y, 769, 771 - 72 (2006) (arguing that "the increase in the longevity of Justices' tenure," among other trends, counsels for a change in the life tenure rule for Justices).
224. Jeffrey A. Segal et al., Buyer Beware? Presidential Success Through Supreme Court Appointments, 53 POL. RES. Q. 557, 557 (2000),
225. make a similar point about the President. They demonstrate that in the short run, Presidents often succeed in appointing ideologically like-minded Justices, but over time, "[J]ustices on average appear to deviate . . . away from the Presidents who appointed them." Id.
226. Epstein et al., supra note 71.
227. Some might argue that George H.W. Bush's appointment of Clarence Thomas, President Bill Clinton's of Ruth Bader Ginsburg, and George W. Bush's of Samuel Alito were all designed to advance partisan interests. But we suspect otherwise, and, in the cases of Thomas and Ginsburg, David Alistair Yalof s account, supra note 61, supports our suspicions. In both instances, the administrations considered but rejected candidates who may have been of greater value to their party's cause. Because of its recentness, no studies yet exist on the calculus behind Alito's nomination. While we suppose it is possible that the record will eventually show that partisan concerns (e.g., appeasing the right wing) guided the selection of Alito, far more likely-given the fit between Alito's and the President's preferences-is that ideology was the primary motivating force.
228. On October 14, 1980, Reagan promised that "one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find, one who meets the high standards I will demand for all my appointments." ELDER WITT, A DIFFERENT JUSTICE: REAGAN AND THE SUPREME COURT 33 (1986) (quoting Ronald Reagan).
229. Worth noting, Reagan's speech of October 14, 1980 in which he pledged to appoint a woman to the Court, see id., was designed to counter accusations that, as Reagan phrased them, he is "somehow opposed to full and equal opportunities for women in America." Id. at 33 (quoting Ronald Reagan);
230. see also YALOF, supra note 61, at 135-36.
231. YALOF, supra note 61, at 204.
232. Think: Reagan's appointment of the first female Justice or President Bush's ability to speak Spanish. For an examination of the importance of symbolic politics, scc Stephen P. Nicholson et al., Ich bin ein Latinol Sophistication, Symbolism, Heuristics, and Latino Preferences in the 2000 Presidential Election (presented at the 2002 annual meeting of the American Political Science Association, Boston, Mass., Aug. 29-Sept. 1, 2002).
233. 539 U.S. 558 (2003) (striking down sodomy laws).
234. 539 U.S. 306 (2003) (upholding Michigan Law School's affirmative action program).
235. 532 U.S. 36 (2001) (ruling that under the state's capital sentencing scheme, jurors should be informed of a defendant's parole ineligibility).
236. We derive these cut points using the Martin-Quinn method. See supra note 87. To begin, suppose we know the locations of all the cut points. In other words, we know that all Justices with an ideal point to the left of the cut point will be more likely to vote in the liberal direction and all Justices to the right of the cut point will be more likely to vote in the conservative direction. If we observe only one case, then knowledge of the lone cut point tells us only that some Justices (those who voted in the liberal direction on the case) are likely to be to the left of the cut point and other Justices (those who voted in the conservative direction) are likely to be to the right of the cut point; we cannot infer the location of each Justice other than that they are probably somewhere to the left or right of the cut point. When observing multiple cases, however, and when the cut points are treated as known, more (probabilistic) constraints are applied to the location of the ideal points and tighter estimates of the ideal points become possible. On the other hand, if we treat the ideal points as known we can make inferences about the likely location of the cut points. To see this, suppose we observe the following sequence of votes (ordered from left to right), where L denotes a liberal vote and C a conservative vote: L L L C C C C C C. From this sequence, we would infer that the most likely place for the cut point would be somewhere between the third and the fourth Justice. (The exact location is determined by the particular modeling assumptions employed, but it is qualitatively similar across a range of reasonable alternative assumptions.) Cases with equivalent observed voting patterns will have the same estimated cut points. By alternately conditioning on the cut points to infer the conditional distribution of the ideal points and conditioning on the ideal points to infer the conditional distribution of the cut points, Martin and Quinn are able to take a sample that is approximately from the joint distribution of the ideal points and cut points given the observed votes on the merits.
237. For more detail on cut points, see id.
238. Furman v. Georgia, 408 U.S. 238 (1972);
239. Gregg v. Georgia, 428 U.S. 153 (1976).
240. For more detail on cut points, see supra note 156.
241. 539 U.S. 510(2003).
242. For more detail on cut points, see supra note 156.
243. See Andrew D. Martin & Kevin M. Quinn, Martin-Quinn Scores - Measures, http://mqscores. wustl.edu/measures.php (data found under "the Court Data Files") (last visited June 12, 2007).
244. For more detail on cut points, see supra note 156. Note that 2005 has a black circle, indicating that Justice O'Connor was the median, as well as a triangle, indicating that Justice Kennedy moved into the median position when O'Connor departed.
245. We make a similar point in Martin et al., supra note 87, at 1309-11.
246. See Martin & Quinn, supra note 162.
247. Some commentators have gone so far as to deem the 2005 term the onset of the Kennedy - and not Roberts - Court era. See, e.g., The Fragile Kennedy Court, N.Y. TIMES, July 7, 2006, at 16 ("The Supreme Court has nominally been the Roberts Court since last fall, when John Roberts arrived as [C]hief [J]ustice. But as a practical matter, the recently completed term marked the start of the Kennedy Court.").
248. 545 U.S. 844 (2005).
249. For more detail on cut points, see supra note 156.
250. 545 U.S. at 881.
251. Interestingly, commentators do not regard Justice O'Connor as the swing vote in the case; they instead point to Justice Breyer. The reason is that on the same day the Court handed down McCreary, it also decided Van Orden v. Perry, 545 U.S. 677 (2005), in which it upheld the display of the Ten Commandments on the grounds of the Texas state capitol. Breyer was the only Justice in the majority in both.
252. See, e.g., Paul Gewirtz, The Pragmatic Passion of Stephen Breyer, 115 YALE LJ. 1675, 1693 (2006) ("The Ten Commandments cases are especially noteworthy because Breyer ended up being the pivotal Justice in each case, providing the decisive fifth vote to allow the display in one case, and the decisive fifth vote to disallow it in the other.").
253. Marcia S. Alembik, The Future of the Lemon Test: A Sweeter Alternative for Establishment Clause Analysis, 40 GA. L. REV. 1171, 1207 (2006) ("Three [J]ustices, Justices Scalia, Kennedy, and Thomas have already indicated that they think the Lemon test should be overruled, and the addition of two new Justices, both sharing this view, could cause the Lemon test to turn sour.");
254. Erwin Chemerin-sky, The End of an Era, 8 GREEN BAG 2d 345, 352 (2005) ("With four Justices-Rehnquist, Scalia, Kennedy, and Thomas-eager to overrule the Lemon test and allow a much greater presence of religion in government, this is an area where Justice O'Connor's successor could have an immediate and dramatic effect on the law.");
255. Marci A. Hamilton, The Establishment Clause During the 2004 Term: Big Cases, Little Movement, 2004-05 CATO SUP. CT. REV. 159, 184 (noting that the differences between the majority and dissenters in McCreary are "stark," and that "the next [J]ustice of the Supreme Court, who replaces Justice O'Connor, will have the power to shift the doctrine either way.");
256. Christopher B. Harwood, Evaluating the Supreme Court's Establishment Clause Jurisprudence in the Wake of Van Orden v. Perry and McCreary County v. ACLU, 71 MO. L. REV. 317, 348 (2006) ("The appointment of Chief Justice Roberts and Justice Alito to fill the vacancies left by Chief Justice Rehnquist and Justice O'Connor likely will alter the Court's Establishment Clause jurisprudence and produce decisions that conform to the teachings of the accommodation approach, Last term, the neutrality approach enjoyed majority support by the slimmest of margins, and one of the supporters of that approach, Justice O'Connor, has since left the Court.").
257. Justice Kennedy has advocated a coercion test to resolve religious establishment disputes. See Lee v. Weisman, 505 U.S. 577, 587 (1992) ("It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise . . . ."); County of Allegheny v. ACLU, 492 U.S. 573, 659 (1989) ("Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact 'establishes a [state] religion or religious faith, or tends to do so.'").
258. Under this approach, he has voted to uphold (Allegheny) and strike down (Lee) practices challenged under the Establishment Clause, See, e.g., William Van Alstyne, Nine Judges, and Five Versions of One Amendment-The First ("Now What?"), 14 WM. & MARY BILL RTS. J. 17, 29 (2005)
259. ("Justice Kennedy, while generally more disposed to the generic view common to Rehnquist, Scalia, and Justice Thomas, is nevertheless quite at odds with them when he finds evidence that government has brought some degree of 'coercion' to bear in its various religious preferments."); Cynthia V. Ward, Coercion and Choice Under the Establishment Clause, 39 U.C. DAVIS L. REV. 1621, 1624 (2006) ("In the late 1980s, Justice Anthony Kennedy put forward the concept of coercion as the gauge for an Establishment Clause violation, and Justice Kennedy's 'coercion test has recently caught on.").
260. See Jenkins, supra note 11.
261. See supra note 24.
262. Strauss, supra note 7.
263. Alternatively, given the prominence of leftward drift among recent Justices, Presidents ought consider nominees more conservative than their ideal points.