Super medians

Stanford Law Review

Volumn 61, Issue 1, 2008, Pages 37-100

  Epstein, Lee ^a   Jacobi, Tonja ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 57849109143     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (332)

1. The Farmer in the Dell, available at http://kids.niehs.nih.gov/ lyrics/farmer.htm (last visited Aug. 12, 2008).
2. We base these claims on Jeffrey A. Segal, Richard J. Timpone & Robert M. Howard, Buyer Beware? Presidential Success Through Supreme Court Appointments, 53 POL. RES. Q. 557, 561-63 (2000),
3. which uses systematic data to characterize Franklin D. Roosevelt as the most economically liberal and Ronald Reagan as the most conservative of the Presidents serving since 1932. See also Mark A. Zupan, Measuring the Ideological Preferences of U.S. Presidents: A Proposed (Extremely Simple) Method, 73 PUB. CHOICE 351, 353-59 (1992) (using scores developed by Americans for Democratic Action to show that, as of 1989, Reagan was the most conservative President since World War II);
4. Keith T. Poole, NOMINATE Data, http://voteview.ucsd.edu/dwnl.htm (last visited Aug. 12, 2008) (presenting Common Space scores that show that Reagan was the most conservative President of those examined-Dwight D. Eisenhower through George W. Bush).
5. Hugo Black (D-Ala.) was elected to the Senate in 1927, where he remained until Roosevelt appointed him to the Court in 1937. LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM 320 tbls.4-8 (4th ed. 2007).
6. In 1975, President Gerald Ford appointed Anthony Kennedy to the U.S. Court of Appeals for the Ninth Circuit, where he served until his appointment to the Supreme Court in 1988. Id. at 337.
7. In his writings and in interviews, Justice Black frequently recounted his fidelity to the text of the Constitution. See, e.g., HUGO LAFAYETTE BLACK, A CONSTITUTIONAL FAITH 45-46 (1968) ("As I have said innumerable times before I simply believe that 'Congress shall make no law' means Congress shall make no law.").
8. Indeed, as Philip Bobbitt reports, during an interview with CBS News, "as if to dramatize the textual perspective, . . . Justice Black produced from his coat pocket a small copy of the Constitution . . . ." Philip Bobbitt, Constitutional Fate, 58 TEX. L. REV. 695, 710 (1980).
9. He told the reporter that he always carried it. Id.
10. See, e.g., Heather K. Gerken, Justice Kennedy and the Domains of Equal Protection, 121 HARV. L. REV. 104, 105 (2007) ("Justice Kennedy has always been an idealist . . . .");
11. Linda Greenhouse, Clues to the New Dynamic on the Supreme Court, N.Y. TIMES, July 3, 2007, at A11 (quoting Barry Friedman) ("Justice Kennedy is more of an idealist than a pragmatist . . . .");
12. Edward Lazarus, The New Supreme Court Term: Justice Kennedy's Pivotal Role in Abortion and Race Cases, FINDLAW, Sept. 28, 2006, http://writnews.findlaw.com/lazarus/20060928.html ("Kennedy is very much an idealist when it comes to race.").
13. Formally, the median Justice is "the Justice in the middle of a distribution of Justices, such that (in an ideological distribution, for example) half the Justices are to the right of (more 'conservative' than) the median and half are to the left of (more 'liberal' than) the median." Andrew D. Martin, Kevin M. Quinn & Lee Epstein, The Median Justice on the United States Supreme Court, 83 N.C. L. REV. 1275, 1277 (2005).
14. For the identity of each median Justice since the 1953 Term, see infra Figure 3.
15. See infra Figure 8.
16. See infra Figure 1.
17. For roughly 192 of its 218 years (through 2007), an odd number of Justices have sat on the Court. The exceptions are 1790-1806 (six Justices);
18. 1845, 1861, 1867-69, 1969 (eight Justices);
19. and 1863-1865 (ten Justices). See CRAIG R. DUCAT, CONSTITUTIONAL INTERPRETATION app. A (8th ed. 2004).
20. On an even-numbered Court, there is a median, but it is between the two middle Justices, so no individual Justice constitutes the median. For more on this point, see infra Part II.
21. See infra Part II.
22. See, e.g., Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1750-51 (2007) (noting that scholars have promoted "landmark statutes and superprecedents to a central role in constitutional argument");
23. Michael J. Gerhardt, Super Precedent, 90 MINN. L. REV. 1204, 1205-06 (2006) ("Super precedents are the doctrinal, or decisional, foundations for subsequent lines of judicial decisions . . . .");
24. Michael Sinclair, Precedent, Super-Precedent, 14 GEO. MASON L. REV. 363, 365 (2007) ("To say a case is a super-precedent means it is judicially unshakeable, a precedential monument which may not be gainsaid, akin to having the statute-like force of vertical stare decisis horizontally.").
25. Gerhardt suggests that the idea of super precedents traces at least back to Abraham Lincoln. Gerhardt, supra, at 1205 n.5 (noting Lincoln's assertion that "[j]udicial decisions are of greater or less authority as precedents, according to circumstances").
26. It was William M. Landes and Richard A. Posner who coined the phrase "superprecedent" in Legal Precedent: A Theoretical and Empirical Analysis, 19 J.L. & ECON. 249, 251 (1976) (referring to precedent "so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place").
27. The idea of a super precedent gained more traction when Judge J. Michael Luttig invoked it in Richmond Medical Center for Women v. Gilmore, 219 F.3d 376, 376 (2000)
28. ("I understand the Supreme Court to have intended its decision in Planned Parenthood of Southeastern Pa. v. Casey to be a decision of super-store decisis . . . ." (citation omitted)). But it was not a part of the public dialogue until Senator Arlen Specter referred to "super-duper" precedents in questions he put to John G. Roberts during his confirmation proceedings. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 145 (2005)
29. (statement of Sen. Arlen Specter, Chairman, S. Comm. on the Judiciary) (asking Judge Roberts whether Roe qualified as a super-duper precedent);
30. see also Arlen Specter, Op-Ed., Bringing the Hearings to Order, N.Y. TIMES, July 24, 2005, § 4, at 12 ("[I]t would be appropriate to ask how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision. Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases.").
31. Despite the widespread use of the term, some commentators take issue with the idea of super precedents altogether. See Russell A. Hilton, The Case for the Selective Disincorporation of the Establishment Clause: Is Everson a Super-Precedent?, 56 EMORY L.J. 1701, 1703-04 (2007).
32. See, e.g., Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436, 1491 (2005) (defining super statutes as "pervasive, preference-transforming laws");
33. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1215 (2001) (defining super statutes as laws that "successfully penetrate public normative and institutional culture in a deep way");
34. Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 COLUM. L. REV. 1482, 1512 (2007) ("Whether or not one thinks it useful to attach the label of 'super-statutes' to statutes that have somehow acquired a vaguely 'constitutional' nimbus, legislatures clearly do enact statutes with a view to liquidating or construing an ambiguous constitutional text, and these statutes often become de facto entrenched over time." (footnote omitted)).
35. Of the sixty-seven cases decided after oral argument with a signed majority opinion or judgment of the Court, Justice Kennedy was in the majority in sixty-four and in dissent in two: Cunningham v. California, 549 U.S. 270 (2007) (holding that California's determinate sentencing law violated the Sixth Amendment right to a jury trial),
36. and United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority, 127 S. Ct. 1786 (2007) (ruling that county flow-control ordinances did not violate the Commerce Clause).
37. He did not participate in one, Credit Suisse Securities (USA) LLC v. Billing, 127 S. Ct. 2383 (2007) (holding that securities laws precluded the application of antitrust laws in the context of this dispute).
38. Our data is derived from Harold J. Spaeth's Original U.S. Supreme Court Judicial Database (Dec. 10, 2007 version), with analu=0 and dec-type=l or 7.
39. See Harold J. Spaeth, U.S. Supreme Court Databases, http://www.cas.sc.edu/poli/juri/sctdata.htm (last visited Aug. 12, 2008).
40. With analu=0 and dec-ype=1, Spaeth's Original U.S. Supreme Court Database identifies twenty-four cases decided by a five-to-four vote. See Spaeth, supra note 15.
41. Justice Kennedy was also in the majority in the one case decided by a five-to-three vote, Waiters v. Wachovia Bank, 127 S. Ct. 1559 (2007).
42. Because Spaeth had yet to code the 2007 Term when we wrote this Article, our data end with the 2006 Term. In 2006-2007, Justice Kennedy was, without doubt, a super median, as we conceptually and operationally define the term. We cannot say without Spaeth's data whether he retained that status in the 2007 Term. Because of ideological drift and other factors, it is entirely possible for a Justice to serve as a super median in one term and lose that status in the next term, even if the Court's membership remains stable. See infra Part III. On the other hand, many summaries of the 2007 Term point to Justice Kennedy's continued dominance. See, e.g., David S. Broder, Decider on the High Court, WASH. POST, July 6, 2008, at B7 (stating that Justice Kennedy may be "the single most influential arbiter of domestic policy in the land");
43. Linda Greenhouse, On the Court that Defied Labeling, Kennedy Made the Boldest Mark, N.Y. TIMES, June 29, 2008, at Al ("[I]f the Roberts court in its third term . . . were to be summed up in a sound bite, it would be this: It was, once again, Justice Kennedy's court.");
44. SCOTUSblog, Super StatPack-0T07 Term Recap, http://www.scotusblog.com/wp/ wp-content/uploads/2008/06/superstatpackot07.pdf (last visited Aug. 12, 2008) ("Though Justice Kennedy was not 'perfect' in 5-4s as he was last Term, he still exerted more than considerable influence.").
45. With analu=0 and dec-ype=1 Spaeth's Original U.S. Supreme Court Database identifies ten cases decided by a five-to-four margin during the 1965 Term. See Spaeth, supra note 15. Black joined the majority in five and dissented in five.
46. 384 U.S. 333 (1966) (holding that the extensive media coverage and publicity surrounding Sheppard's trial interfered with his right to a fair trial).
47. 383 U.S. 663 (1966) (holding that poll taxes violate the Fourteenth Amendment's Equal Protection Clause).
48. Here and throughout the article, we operationally define the terms "high-profile," "salient," "consequential," and "important" cases as those that received coverage on the front-page of the New York Times on the day after they were decided by the Court. This is a common definition in social science literature and, increasingly, in law journals. For social science studies using this New York Times measure, see, for example, DAVID R. MAYHEW, DIVIDED WE GOVERN 9 (1991);
49. Lee Epstein & Jeffrey A. Segal, Measuring Issue Salience, 44 AM. J. POL. SCI. 66, 72-81 (2000);
50. James H. Fowler et al., Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court, 15 POL. ANALYSIS 324, 338 (2007).
51. For its use in law-centered publications, see, for example, Lee Epstein, Daniel E. Ho, Gary King & Jeffrey A. Segal, The Supreme Court During Crisis: How War Affects Only Non-War Cases, 80 N.Y.U. L. REV. 1, 61 (2005);
52. Andrea McAtee & Kevin T. McGuire, Lawyers, Justices, and Issue Salience: When and How Do Legal Arguments Affect the U.S. Supreme Court?, 41 LAW & SOC'Y REV. 259, 272 (2007);
53. Paul J. Wahlbeck, Strategy and Constraints on Supreme Court Opinion Assignment, 154 U. PA. L. REV. 1729, 1750-51 n.85 (2006).
54. Using this measure, the Court handed down six decisions of note during the 2006 Term: Parents Involved in Community Schools v. Seattle School District, 127 S. Ct. 2738 (2007);
55. FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007);
56. Tellabs Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007);
57. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007);
58. Gonzales v. Carhart, 127 S. Ct. 1610 (2007);
59. and Massachusetts v. EPA, 127 S. Ct. 1438 (2007). Justice Kennedy was in the majority in all six.
60. Ledbetter, 127 S. Ct. 2162.
61. Carhart, 127 S. Ct. 1610.
62. Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
63. See infra Figure 1.
64. In the 1965 Term, Justice Black was located quite near the Justices on his right (Tom Clark) and left (William Brennan). See infra Figure 8.
65. Linda Greenhouse had a similar insight when, at the end of the 2006 Term, she wrote, "A new dynamic emerged in the court's last term, which ended last week with Justice Kennedy standing in the middle, all alone. Not only the lawyers, but also the Justices themselves, are now in the business of courting him." Linda Greenhouse, Clues to the New Dynamic on the Supreme Court, N.Y. TIMES, July 3, 2007, at A11.
66. See, e.g., Corinna Barrett Lain, Deciding Death, 57 DUKE L.J. 1, 69 (2007) ("[Conservative appointments have pushed the Court's median Justice slightly to the right. . . .");
67. Richard L. Revesz, Congressional Influence on Judicial Behavior? An Empirical Examination of Challenges to Agency Action in the D.C. Circuit, 76 N.Y.U. L. REV. 1100, 1126 n.92 (2001) ("In the last quarter century, the shift in the median Justice has been from Justice Powell or Justice Stewart to Justice Kennedy or Justice O'Connor-probably not a very significant difference.");
68. L.A. Powe, Jr., The Not-So-Brave New Constitutional Order, 117 HARV. L. REV. 647, 680 (2003) (book review) ("After 1962, Brennan was the Warren Court's median Justice;
69. the Rehnquist Court's is either O'Connor or Kennedy. When the median Justice is Rehnquist or Scalia, then talk of revolution will be appropriate." (citations and footnotes omitted)).
70. Jacob Dagger, Q & A: The Shape of the Supreme Court, DUKE MAG., Jan.-Feb. 2006 (quoting Erwin Chemerinsky), available at http://www.dukemagazine.duke.edu/ dukemag/issues/010206/ depqa.html.
71. Linda Greenhouse, In Steps Big and Small, Supreme Court Moved Right, N.Y. TIMES, July 1, 2007, at Al (quoting Steven Calabresi).
72. See, e.g., Lain, supra note 27, at 69;
73. Revesz, supra note 27, at 1126 n.92;
74. Powe, supra note 27, at 680.
75. Dagger, supra note 28 (emphasis added) (quoting Erwin Chemerinsky).
76. Martin, Quinn & Epstein, supra note 7, at 1277.
77. Nearly all systematic quantitative work on the U.S. Supreme Court suggests that the issue space is single-dimensional - that is, despite their individual differences, in the aggregate, Supreme Court cases can be arrayed meaningfully on a single left-right dimension. See, e.g., Bernard Grofman & Timothy J. Brazill, Identifying the Median Justice on the Supreme Court Through Multidimensional Scaling: Analysis of "Natural Courts" 1953-1991, 112 PUB. CHOICE 55, 58 (2002) (noting that the single-dimension solution explains much of the Justices' voting behaviors).
78. Some law scholars, however, take issue with this idea. See, e.g., Evan H. Caminker, Sincere and Strategic Voting Norms on Multimember Courts, 97 MICH. L. REV. 2297,2320 (1999) ("It is frequently assumed that... the majority will converge in a moderate or median position. This may well be quite likely when the Justices' ideal points can be lined up nicely in a single-peaked fashion along a single dimension, for instance from liberal to conservative . . . . But sometimes the options under discussion cannot easily be aligned along a single dimension.").
79. See Keith T. Poole, Changing Minds? Not in Congress!, 131 PUB. CHOICE 435, 437 (2007) (reporting that voting in Congress is almost exclusively one-dimensional, such that now "a single dimension accounts for about 92 percent of roll call voting").
80. More specifically, these are Andrew D. Martin and Kevin M. Quinn's ideal point estimates. Martin and Quinn derive the scores from the votes cast by the Justices via a Bayesian modeling strategy. See 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, 135 (2002). The updated Martin and Quinn ideal point estimates, along with all other data used in this study, are available at http://epstein.law. northwestern.edu/ research/SuperMedians.html.
81. Monotonicity here means that, whatever the pace of change, the further an outcome moves from a Justice's ideal point, utility only decreases, and does not at any point increase. Keith Krehbiel, Spatial Models of Legislative Choice, 13 LEGIS. STUD. Q. 259, 263 (1988).
82. Martin & Quinn, supra note 35.
83. We (and Martin and Quinn) are agnostic as to whether judges behave sincerely or strategically in casting those votes-that is, whether they simply vote their views on the cases, or consider the likely effect of those votes, particularly in light of their expectations of other Justices' likely behavior. But see infra note 214.
84. The Martin-Quinn scores for the Justices use a constant scale, where the zero point is the approximate historical mean of the Court, with negative numbers translating to liberalism and positive numbers translating to conservatism. Justice Douglas is by far the most liberal Justice to have served since 1937, with an average ideological score of-4.00 and a zenith of-6.42 in 1974, his final term. On the conservative end, Justice Rehnquist has the record for the highest score, of 4.30, but Justice Thomas is the most conservative Justice over his career, with an average ideological score of 3.60. All the figures in this Article that display preference configurations, such as Figure 1, are on the Martin-Quinn constant scale. Moreover, they are anchored, so that the positions of the Justices are directly comparable, with the exceptions of the 1965 and 1969 Terms. Because Justice Douglas is so far to the left, for representational purposes, we moved these figures to the right, but the scale remains the same. In 1969, the zero point lay between Brennan and Black, in 1965 the zero point was between White and Stewart, and in 2006, the zero point laid between Kennedy and Breyer.
85. In other words, the ideal point is essentially the mean position taken by the Justice over a distribution of cases. In Figure 1 and others to follow, we plot a distribution for each Justice of one standard deviation above and below the ideal point, which captures 68% of a normally distributed curve.
86. But see infra notes 183-85.
87. Justice Fortas left the Court on May 14, 1969 and Chief Justice Warren departed on June 23, 1969. The new President, Richard Nixon, was able to name Warren Burger to replace Earl Warren before the start of the 1969 Term but he was unable to fill the Fortas vacancy until the very end of the Term (Harry Blackmun in May of 1970). The two candidates he nominated prior to Blackmun, Clement Haynsworth and G. Harrold Carswell, were rejected by the Senate.
88. Dagger, supra note 28 (quoting Erwin Chemerinsky).
89. DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS (1958) [hereinafter BLACK, THEORY];
90. Duncan Black, On the Rationale of Group Decision-Making, 56 J. POL. ECON. 23, 27-28 (1948).
91. The key circumstances are (1) voters with single-peaked preferences and (2) voters operating in a single-dimensional issue space. See generally Keith Krehbiel, supra note 36, at 260-69 (1988).
92. See, e.g., Jack M. Balkin & Sanford Levinson, The Process of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489, 501 (2006) ("[T]he median Justice in a multimember Court, simply because he or she is the median, tends to push the Court's work back to the center.");
93. Roderick M. Hills, Jr., The Individual Right to Federalism in the Rehnquist Court, 74 GEO. WASH. L. REV. 888, 897 (2006) (noting "the decisive influence for the median Justice" in federalism cases);
94. Martin, Quinn & Epstein, supra note 7, at 1281-83 (providing a theoretical demonstration of the power of the median Justice in sex discrimination cases).
95. We conducted searches in ProQuest of articles on the Supreme Court in the Chicago Tribune, Los Angeles Times, New York Times, Wall Street Journal, and Washington Post.
96. Greenhouse, supra note 29 (quoting Steven Calabresi).
97. Quotation of the Day, N.Y. TIMES, July 1, 2007, at A2.
98. We adapt this phrase from Eskridge and Ferejohn, who write that "[n]ot all statutes are created equal." Eskridge & Ferejohn, supra note 14, at 1215.
99. 410 U.S. 113(1973).
100. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 144-45 (2005) (statement of Sen. Arlen Specter, Chairman, S. Comm. on the Judiciary).
101. Ackerman argues that Specter's references to super precedents indicate that our operational canon presently contains at least two components: one part is composed of the official canon, and the other of judicial superprecedents. The Supreme Court has an institutional obligation to recognize that superprecedents crystallize fixed points in our constitutional tradition, and should not be overruled or ignored in the course of doctrinal development. In this, of course, superprecedents resemble formal amendments, which play a similar shaping role in the operational canon. Ackerman, supra note 13, at 1752.
102. See, e.g., id.;
103. Gerhardt, supra note 13, at 1205-06.
104. Eskridge & Ferejohn, supra note 14, at 1216-17.
105. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
106. Alcohol and Drug Abuse Amendments, Pub. L. No. 98-24, 97 Stat. 175 (1983).
107. As Eskridge and Ferejohn note, the Alcohol Amendments were "a pallid response to the deadly effects of the drug nicotine" in that they only require the Secretary of Health and Human Services to report every three years on the "addictive property of tobacco." Eskridge & Ferejohn, supra note 14, at 1215 n.2.
108. Gerhardt, supra note 13, at 1213.
109. Eskridge & Ferejohn, supra note 14, at 1216.
110. See, e.g., Furman v. Georgia, 408 U.S. 238, 375 (1972) (Burger, C.J., dissenting) (arguing that the majority is mistaken in holding that existing death penalty statutes are unconstitutional).
111. On the day after the Court handed down the Furman decision, President Nixon held a press conference during which he addressed the issue of capital punishment. "[H]e said that he had not gotten 'through all nine opinions,' [but] he had read [Chief Justice Burger's] dissent. Based on Burger's opinion, he found 'the holding of the Court must not be taken... to rule out capital punishment.'" LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY 84 (1992)
112. (citing Transcript of President Nixon's News Conference Emphasizing Foreign Affairs, N.Y. TIMES, June 30, 1972, at A2).
113. Shortly thereafter, the President introduced a bill to reinstate the death penalty for federal crimes. Over thirty states followed suit. Id. at 84-87.
114. A prominent example is Betts v. Brady, 316 U.S. 455 (1942),
115. in which Justice Black dissented from the majority's holding that the U.S. Constitution does not guarantee the right to counsel in criminal cases. Twenty-one years later, in Gideon v. Wainwright, 372 U.S. 335 (1963),
116. Justice Black wrote the majority opinion overturning Betts. See generally Vanessa Anne Baird & Tonja Jacobi, How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court (USC Legal Studies Research Paper Series, Paper No. 05-21, 2005), available at http://ssrn.com/abstract=846585 (showing that justices successfully use federalism as a basis to dissent and transform the minority position into a majority in later cases in a statistically significant number of cases).
117. In fact, since its creation, the Court has explicitly overruled fewer than 250 of its own decisions. EPSTEIN ET AL., supra note 3, at 208-21 tbls.2-17.
118. See Nancy C. Staudt et al., Judicial Decisions as Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954-2005, 82 N.Y.U. L. REV. 1340, 1345 (2007) ("Legislators often follow the lead of the Justices when drafting and amending statutes.").
119. Dagger, supra note 28.
120. Robert Barnes, Supreme Court to Take on Contentious Cases in New Term, WASH. POST, Oct. 1,2007, at A8.
121. 410 U.S. 113 (1973).
122. Jeffrey Rosen, The Dissenter, N.Y. TIMES, Sept. 23, 2007, § 6 (Magazine), at 50.
123. The short vertical lines show the Martin-Quinn ideal point estimates. Martin & Quinn, supra note 35.
124. For interpretive complications, see infra note 68.
125. Because only eight Justices served during the 1969 Term, we exclude it from this and all subsequent analyses. Other complications are as follows: 1954 Term: Until Justice Harlan's confirmation in March 1955, this was an eightmember Court. If we exclude Harlan, the median would be between Justices Frankfurter and Clark. With Harlan's inclusion, Frankfurter is the median. We chose to include Harlan. 1961 Term: Until April 1962, this was a nine-person Court with Justice Clark as the median. On March 31, 1962, Justice Whittaker retired; he was replaced by Byron White on April 16, 1962. But prior to White's arrival, Justice Frankfurter suffered a stroke, which eventually led him to retire in August 1962. White and Frankfurter never voted together-meaning that an eight-person Court operated from roughly April 1962 through the end of the Term. We chose to consider the nine-person Court prior to White's arrival, Whittaker's departure, and Frankfurter's stroke. Hence, Clark is the median Justice in this Term. 2005 Term: Until Alito's arrival in January 2006, Justice O'Connor was the median. After she retired, Kennedy moved into the swing position. To capture both, we include the Term twice: pre-Alito and post-O'Connor. For each of these Terms, we conducted robustness checks on all our analyses. The checks called for no major changes in interpretation.
126. Martin and Quinn's ideal point estimates allow for the possibility that judicial ideology changes over time, and, in fact, recent scholarship indicates significant drift among some Justices. Lee Epstein et al, Ideological Drift on the U.S. Supreme Court, 101 NW. U. L. REV. 1483 (2007). This opens the possibility of changes in the median Justice even in the absence of personnel changes on the Court. So, for example, during the ten Terms between 1994 and 2004, when the Court's membership remained stable, the swing seat switched back and forth between Justices O'Connor and Kennedy.
127. See Lee Epstein, Jack Knight & Andrew D. Martin, The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court, 91 CAL. L. REV. 903 (2003).
128. We derive these data from Spaeth, supra note 15, using dec-type=1 or 7 and analu=0.
129. BLACK, THEORY, supra note 43.
130. Note that Justice Kennedy's percentage for the 2005 Term reflects his voting after Justice O'Connor departed.
131. Of the Court's 5711 decisions handed down between the 1953 and 2006 Terms, at least one Justice cast a dissenting vote in 3629 decisions (or 65.54%). These figures are derived from Spaeth, supra note 15, using dec-ype=1 or 7 and analu=0.
132. The mean is 88.6%, with a standard deviation of 5.2%.
133. The range is from a low of 74.4% (Frankfurter in 1955) to highs of near or at 100% (Marshall in 1967, O'Connor in 2005, and Kennedy in 2006).
134. For more details on the data underlying this figure, see supra notes 68, 71, 73.
135. See, e.g., Jonathan H. Adler, How Conservative is this Court?, NAT'L REV. ONLINE, July 5, 2007 (available on LexisNexis) ("As the swing justice, Justice Kennedy was able to dictate the outcome in many cases. He voted with the majority in every one of this term's 5-4 decisions, even those that were not decided along ideological lines.");
136. Jim Fry, Conservatives Hold Edge on U.S. Supreme Court, VOICE OF AM. NEWS, July 11, 2007 ("Kennedy-on the winning side in every close case-has become the court's crucial swing vote.");
137. Warren Richey, Supreme Court Tilt to Right Had Its Limits, CHRISTIAN SCI. MONITOR, July 2, 2007, at 1 ("The most significant development at the court this term was the emergence of Justice Kennedy, a conservative centrist swing voter, as the center of power in the Roberts court.... [He] was on the winning side in all [five-to-four vote] cases.").
138. Between the 1953 and 2006 Terms, 1238 of the Court's 5711 cases were decided by a one-vote margin, meaning that a one-vote change would have altered the outcome of the case (that is, from reversed to affirmed, or from reversed to a tied vote). Of the 1238, 9 were decided by votes of four-to-two, 39 by four-to-three votes, 213 by five-to-three votes, and 977 by votes of five-to-four. We derived these figures from Spaeth, supra note 15, using dec-type=1 or 7 and analu=0.
139. All the figures in this paragraph exclude Goldberg, Marshall, and O'Connor.
140. This calculation reflects a mean of 88.6%, with a standard deviation of 5.2%.
141. For more details on the data underlying this figure, see supra note 79.
142. These Justices are in the top 75th percentile of the range, which means being in the majority in at least 80% of cases.
143. See, e.g., Gregory A. Calderia & Christopher J.W. Zorn, Of Time and Consensual Norms in the Supreme Court, 42 AM. J. POL. SCI. 874, 877 (1998) ("[A] justice has the option of joining one or more colleagues' regular or special concurrences . . . .");
144. Patrick D. Schmidt & David A. Yalof, The "Swing Voter" Revisited: Justice Anthony Kennedy and the First Amendment Right of Free Speech, 57 POL. RES. Q. 209, 214 tbl.2 (2004) (comparing "Regular Concurrences" and "Special Concurrences" for the 1994-2001 Terms);
145. James F. Spriggs II & Thomas G. Hansford, The U.S. Supreme Court's Incorporation and Interpretation of Precedent, 36 L. & SOC'Y REV. 139, 149 (2002) (using "special concurrences" in a model of precedent).
146. The canonical example along these lines is Justice Jackson's concurrence in the judgment in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
147. See, e.g., Sarah H. Cleveland, Hamdi Meets Youngstown. Justice Jackson's Wartime Security Jurisprudence and the Detention of "Enemy Combatants ", 68 ALB. L. REV. 1127, 1128 (2005) ("It is impossible to exaggerate the significance of Justice Jackson's concurrence in Youngstown for U.S. foreign relations jurisprudence.");
148. Bernadette Meyler, Economie Emergency and the Rule of Law, 56 DEPAUL L. REV. 539, 561 (2007) (calling Jackson's concurrence in Youngstown "the opinion that has subsequently proved the most influential");
149. Haridimos V. Thravalos, Comment, The Military Commission in the War on Terrorism, 51 VILL. L. REV. 737, 759 (2006) (stating that Jackson's concurrence sets forth "the seminal three-part test for separation of powers analysis").
150. Computed from Spaeth, supra note 15, using dec-type=l or 7 and analu=0. For each median (for example, Clark), we used the following Stata code to derive the percentages: generate ClarkSp=1 if clkv==4 replace ClarkSp=0 if (clk-v==1 clkv==3)
151. For more details on the data underlying this figure, see supra notes 68, 73, 86.
152. 401 U.S. 395, 401 (1971) (Harlan, J., concurring).
153. 403 U.S. 124, 165 (1971) (Harlan, J., concurring).
154. 403 U.S. 528, 557 (1971) (Harlan, J., concurring).
155. 391 U.S. 145, 171 (1968) (Harlan, J., dissenting).
156. 399 U.S. 78, 117 (1970) (Harlan, J., concurring).
157. McKeiver, 403 U.S. at 557.
158. Jeffrey R. Lax & Charles M. Cameron, Bargaining and Opinion Assignment on the U.S. Supreme Court, 23 J.L. ECON. & ORG. 276, 276-77 (2007).
159. On this much scholars and the Justices agree. See, e.g., Abe Fortas, Chief Justice Warren: The Enigma of Leadership, 84 YALE L.J. 405, 405 (1975) ("If the Chief Justice assigns the writing of the opinion of the Court to Mr. Justice A, a statement of profound consequence may emerge. If he assigns it to Mr. Justice B, the opinion of the Court may be of limited consequence.").
160. For a scholarly analysis, see, for example, Forrest Maltzman & Paul J. Wahlbeck, Opinion Assignment on the Rehnquist Court, 89 JUDICATURE 121, 122 (2005) ("Which justice writes an opinion is . . . highly consequential for the legal choices made by the Court.").
161. If the Chief Justice is in the majority, he makes the opinion assignment; if he is not, the task falls to the most senior Associate Justice in the majority. For the 1953-2006 Terms, the Chief Justice was in the majority in 85.9 percent of the cases. We derived these percentages from Spaeth, supra note 15, using dec-type=1 or 7 and analu=0.
162. 127 S. Ct. 1610 (2007). Justice Kennedy's opinion generated enormous press coverage. A LexisNexis search in News, All (English, Full Text), conducted on December 31, 2007, brought up 421 stories. It also has already received considerable play in the law reviews. See, e.g., Martha C. Nussbaum, The Supreme Court, 2006 Term: Foreword-Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 HARV. L. REV. 4, 84 (2007) (arguing that the implications of Carhart "for the future of sex equality are ominous");
163. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 431 (2007) ("As this Essay was going to press, the Court decided Gonzales v. Carhart . . . . Carhart's rhetoric is striking.");
164. The Supreme Court, 2006 Term-Leading Cases, 121 HARV. L. REV. 185, 265-69 (2007) (summarizing the Carhart holding and the Justices' opinions).
165. Partial-Birth Abortion Act, Pub. L. No. 108-105, 117 Stat. 1201 (2003).
166. We use the New York Times measure to assess case importance. As we explained, see supra note 20, this measure taps importance as perceived at the time the Court handed down the case-contemporary salience-rather than whether the case actually achieved long-term influence. Since both median power and the New York Times measure of importance are assessed ex ante, long-term influence is not relevant to our inquiry. We derive the percentage of important cases in which the median was in the majority opinion coalition from Spaeth, supra note 15, using dec-type=1 or 7 and analu=0. To determine whether the median (for example, Clark) wrote the opinion or judgment of the Court in important cases, we also used the Spaeth Database, and the following Stata code: generate ClarkWNYT=1 if (clicv==1 clkv==6) (clko==1 clko==2) (nyt==1) replace ClarkWNYT=0 if (ClarkWNYT==. clkm==1) (nyt==1) Note that in calculating the percentage of majority or plurality opinions authored by the median in prominent cases, the numerator is the number of opinions written by the median and the denominator is the number of prominent cases in which the median was in the majority. Finally, due to a small N (=2), we exclude O'Connor (2005a) in both panels.
167. The correlation between the two measures is a reasonably high 0.43.
168. For more details on the data underlying this figure, see supra notes 68, 73, 99.
169. During the 1965 Term eighteen cases registered on the New York Times measure. Of those, Justice Black dissented in eight and joined the majority in ten. In all ten in which he joined the majority, so did the Chief Justice. See also supra note 96.
170. Even if we assume minimum-winning coalitions in these cases (meaning a onein-five chance that any given Justice would write the opinion of the Court), their percentages are still significantly higher (p<0.05).
171. 539 U.S. 306 (2003) (upholding the University of Michigan Law School's use of race in its admissions decisions).
172. 484 U.S. 260 (1988) (allowing educators to impose certain standards over the contents of a high school newspaper).
173. Actually, reports of the day stressed Earl Warren's emerging liberalism, which resulted in his "throwing the decisive vote to the liberal wing" in five-to-four decisions. See, e.g., James Reston, The Liberal Three: A Study of Chief Justice Warren's Accord with Douglas and Black in Many Cases, N.Y. TIMES, June 15, 1956, at 14.
174. We characterize these Justices as super medians because (1) they ranked in the 50th percentile or higher on the crucial indicators of membership in the majority in all cases, see supra Figure 4, and in one-vote-margin cases, see supra Figure 5; (2) they were in or above the 50th percentile when it came to authoring important opinions,
175. see supra Figure 7; and (3) more generally, in looking across all five measures of median power, each found themselves in the 75th percentile or higher on at least two but more typically three indicators.
176. Fred P. Graham, Supreme Court, in Recent Term, Began Swing to the Right That Was Sought by Nixon, N.Y. TIMES, July 2, 1972, at 18.
177. 408 U.S. 665 (1972) (refusing to recognize a special privilege for reporters).
178. 406 U.S. 356 (1972) (holding that a less-than-unanimous jury verdict does not necessarily violate the Sixth Amendment).
179. 408 U.S. 606 (1972) (finding that the Speech or Debate Clause fails to shield a senator's aide from certain grand jury questions).
180. Linda Greenhouse, A Divided Supreme Court Ends the Term with a Bang, N.Y. TIMES, July 1, 1990, at E3.
181. Lance Liebman, Swing Man on the Supreme Court, N.Y. TIMES, Oct. 8, 1972, § 6 (Magazine), at 16.
182. Linda P. Campbell, White Leaving High Court: Interest Groups Lobbying Clinton, CHI. TRIB., Mar. 20, 1993, at 1.
183. David G. Savage, Byron White, 84; Ex-Supreme Court Justice, L.A. TIMES, Apr. 16, 2002, at 10.
184. See, e.g., MARK TUSHNET, A COURT DIVIDED 34 (2005) (listing Byron White among the conservatives on the Rehnquist Court);
185. Linda Greenhouse, Byron R. White, Longtime Justice and a Football Legend, Dies at 84, N.Y. TIMES, Apr. 16, 2002, at Al ("Though [White] was then the court's sole remaining Democrat, he was in many ways more at home in the conservative era of Chief Justice William H. Rehnquist.").
186. Epstein et al., supra note 69, at 1514 ("Compared with the early 1960s, [Justice White] grew significantly more conservative at the start of the Burger Court era ....").
187. Id. at 1508 ("During his first two Terms, Souter was the Court's likely median, or swing, Justice.").
188. David G. Savage, Supreme Court Ends Term with Eye on November, L.A. TIMES, July 2, 2000, at 1.
189. Linda Greenhouse, Split Decisions; the Court Rules, America Changes, N.Y. TIMES, July 2, 2000, § 4, at 1 ("At the center of the court this term [was] Justice O'Connor, who cast only five dissenting votes . . . .").
190. Edward P. Lazarus, It's All About O'Connor, L.A. TIMES, July 9, 2000, at 2.
191. 530 U.S. 640 (2000).
192. She was in the majority in nine of the Term's eleven important cases. Of the nine, she wrote for the majority (or plurality) in four.
193. See, e.g., Linda Greenhouse, Supreme Court Allows Disabled Georgia Inmate to Proceed with Suit Against State, N.Y. TIMES, Jan. 11, 2006, at A27 ("[T]he imminent departure of Justice Sandra Day O'Connor, who has been at the center of the federalism debates, might have prompted the court to decide the new case promptly, and therefore narrowly, and to defer the hard questions.").
194. Douglas W. Kmiec, Who Rules the High Court?, L.A. TIMES, July 8, 2006, at 15.
195. See, e.g., Charles Krauthammer, Editorial, Emergency Over, Saith the Court, WASH. POST, July 7, 2006, at A17;
196. Ruth Marcus, Editorial, The Kennedy Center; the Supreme Court's Balance Is Precarious, WASH. POST, July 5, 2006, at A13.
197. Dahlia Lithwick, A Supreme Court of One, WASH. POST, July 2, 2006, at B1.
198. See infra Part V.
199. David G. Savage, Roberts Steers Law to Right, CHI. TRIB., July 1, 2007, at 3.
200. McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960);
201. Grisham v. Hagan, 361 U.S. 278 (1960);
202. Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960).
203. 354 U.S. 1 (1957).
204. Anthony Lewis, Supreme Court Curbs Rights of the Military to Try Civilians, N.Y. TIMES, Jan. 19, 1960, at 1;
205. see also The Supreme Court, 1959 Term, L. HARV. L. REV. 95, 117 (1960) (pointing out that Clark had dissented in Reid but now joined with Warren, Black, Douglas, and Brennan to strike down the provision).
206. Harold J. Spaeth, Warren Court Attitudes Toward Business: The "B" Scale, in JUDICIAL DECISION-MAKING 79, 89 (Glendon Schubert ed., 1963).
207. Anthony Lewis, Supreme Court Balance of Power Often Held by Clark and Stewart, N.Y. TIMES, July 4, 1960, at 1.
208. Nine dissents for Stewart versus four for Clark. The figures are derived from Spaeth, supra note 15, with analu=0 and dec-ype=1 or 7.
209. Anthony Lewis, New Judges and Doctrines Alter Character of Supreme Court, N.Y. TIMES, June 23, 1963, at 64. The five were Justices Warren, Black, Douglas, Brennan, and Goldberg.
210. BERNARD SCHWARTZ, SUPER CHIEF 449-74 ( 1983).
211. 372 U.S. 539 (1963).
212. SCHWARTZ, supra note 137, at 452-53.
213. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 224 (1979).
214. Closer to the mark was a remark made later by Al Kamen: "Justice Lewis F. Powell Jr. sits second from the left when the Supreme Court takes the bench; seating follows seniority. But if Justices were arrayed by philosophy, Powell would sit exactly in the middle." Al Kamen, Powell Acts as Court Majority-Maker; Virginian Is Swing Vote on Divided Bench, WASH. POST, Apr. 1, 1985, at Al. Powell was indeed the median Justice in the 1984 Term but only in 1986 was he a truly dominant swing.
215. WOODWARD & ARMSTRONG, supra note 140, at 256.
216. Sinclair, supra note 13, at 401.
217. Gerhardt, supra note 13, at 1207.
218. Eskridge & Ferejohn, supra note 14, at 1230-31.
219. The literature along these lines is voluminous. For examples, see supra note 45.
220. The quote about Justice Kennedy in Lithwick, supra note 127, falls into this category.
221. The mean Martin and Quinn ideal point estimate since the 1953 Term is -0.01, with a standard deviation of 2.1. The minimum (most liberal) value is -6.4 (Douglas in the 1974 Term) and the maximum (most conservative) value is 4.3 (Rehnquist in the 1975 Term). For the 1965 Term, Justice Douglas's score is -5.7, and Harlan's is 2.1 (virtually identical to Rehnquist's of 1990).
222. The "on average" gap between the Justices occupying positions 4 and 6 (those to the median's immediate left and right) since the 1953 Term was nearly double, at 1.3.
223. Of the ninety-four decisions, Black dissented in twenty-two. We calculated this from Spaeth, supra note 15, with analu=0 and dec-type=1 or 7.
224. 384 U.S. 757 (1966).
225. See, e.g., YALE KAMISAR ET AL., ADVANCED CRIMINAL PROCEDURE 35-36 (11th ed. 2005);
226. LEADING CASES ON CRIMINAL JUSTICE 790-99 (Lloyd L. Weinreb ed., 2007);
227. ARNOLD H. LOEWY, CRIMINAL PROCEDURE: CASES, MATERIALS, AND QUESTIONS 914-19 (2d ed. 2006).
228. 384 U.S. 333 (1966).
229. 383 U.S. 663 (1966).
230. For our definition of high-profile or important cases, see supra note 20.
231. 545 U.S. 469 (2005).
232. 543 U.S. 551 (2005).
233. 492 U.S. 361 (1989).
234. Roberts's ideal point estimate in 2005 was 1.51; Rehnquist's in 2004 was 1.40.
235. For the 2005 Term, Roberts's ideal point estimate was 1.51;
236. Alito's was a slightly more liberal 1.45. Likewise, in the 2006 Term Alito was to Roberts's left (1.44 and 1.53 ideal point estimates, respectively). We computed these estimates from Martin & Quinn, supra note 35. 1.45 and -0.032 respectively in 2005.
237. We computed these from Martin & Quinn, supra note 35.
238. From -1.18 to-1.47, computed from Martin & Quinn, supra note 35.
239. As Tonja Jacobi notes, under this sort of preference configuration and with the exception of cases with extreme status quos, it may be difficult for larger blocs to form. On the other hand, to the extent that six Justices can manage to coalesce, they should be able to craft an opinion that would include the other three, for an opinion able to satisfy the sixth Justice should also be able to garner support from the seventh, eighth, and ninth Justices. Tonja Jacobi, Competing Models of Judicial Coalition Formation and Case Outcome Determination, 1 J. LEGAL ANALYSIS (forthcoming 2008) (manuscript at 15), available at http://ssrn.com/abstract=947592.
240. Or, at least, since the 1953 Term. We computed the percentage from Spaeth, supra note 15, using analu=0 and dec-type=1 or 7.
241. See supra note 20 (listing the six cases).
242. 127 S. Ct. 2499 (2007).
243. All but Tellabs were decided by one-vote margins.
244. The mean of the gap is 1.25, with a standard deviation of 0.65. The range is 0.20 (minimum) to 2.88 (maximum).
245. The raw data appear supra Figure 4.
246. See supra Figure 5.
247. For data on the last two indicators, see supra Figure 7.
248. The gap is a significant predictor for the propensity of the median to be in the majority, in both general cases and five-to-four cases, and of the propensity to concur. In relation to important cases, recall that we assess two indicators of the median's relative role in producing important decisions: joining the majority (or plurality) and opinion writing. The gap is not, to a statistically significant degree, associated with the former but it is with the latter, as it is with all other measures (p≤0.5).
249. For more details on the data underlying this figure, see supra notes 35, 68, 73, 168.
250. At the smallest distances, the probability is 0.62, with a 95% confidence interval of [0.57, 0.68].
251. The 95% confidence interval is [0.81, 0.95].
252. In the regression of one-vote-margin cases on the gap, the coefficient on distance is 9.58, with a 95% confidence interval of [5.24, 13.91]. The RMSE is 10.06.
253. Of the 726 important decisions in which nine Justices voted, 32.5% were decided by five-to-four votes and 24.5% were six-to-three; 21% were unanimous. (The remaining were seven-to-two or eight-to-one.) If each member of the five-person majority had an equal chance of writing the opinion (0.20), no significant difference emerges between the medians' percentage and those of her colleagues. If it was a unanimous coalition (0.11), 0.17 is significantly higher than we would expect (at p<0.05), again assuming each member had an equal chance of writing.
254. The 95% confidence interval is [2.17, 12.42].
255. The 95% confidence interval is [24.34, 39.03].
256. To create this figure, we used J. SCOTT LONG & JEREMY FREESE, REGRESSION MODELS FOR CATEGORICAL OUTCOMES USING STATA (2d ed. 2005).
257. See supra Part II
258. Keep in mind that the distributions we illustrate here are one standard deviation above and below the Justices' ideal points, which predict 68% of their votes, assuming a normal distribution. See supra note 39.
259. The standard deviation around Justice Thomas's ideal point was 0.41, almost four times the mean standard deviation of Justice White's in the 1970s, and over 50% larger than his own standard deviation in 1991. Given commentary suggesting that Justice Thomas is among the Court's most predictable (conservative) voters, this finding presents something of a challenge, and one worthy of brief consideration. The seeming paradox presented by Justice Thomas illustrates the interplay between our two factors, the gap and the overlap. In 2006, Justice Thomas's distribution was the widest on the Court, yet he was positioned so far to the right that no convergence emerged between his distribution and any other Justice's, including Justice Scalia's. While Justice Thomas did occasionally overlap with another Justice-in both 1991 and 2001, he converged with Justice Scalia-he is consistently the most conservative voter on the Court. As such, despite his consistently wide distribution, his position at the extreme dampens casual observers' appreciation of his inconsistency. A similar analysis applies to Justice Stevens on the left, who in recent years has had the second broadest distribution but is consistently the most liberal voter. However, see note 184, infra.
260. Comparisons between the distributions of Justices at the center of the court and those at the extremes must be treated with great caution, as the Martin and Quinn scores systematically overestimate the width of the distributions of the extreme Justices. In simple terms, this is because the scores are derived by comparing multiple arrays of Justices and finding which set of scores best describe the votes we observe. Since the scores are unbounded, the Justices at the extremes could theoretically be more or less extreme and still result in the same voting patterns, if, for example, extreme Justices dissented on their own most often. This renders large standard errors for all of the extreme Justices. Since our analysis considers only the distributions of the three central Justices, this systematic bias in the distributions of the extreme Justices should not significantly affect our results. Nevertheless, we repeated our analysis using the probability of each Justice having a specific ranking - J1, J2, etc. - instead of their ideological scores. The results were substantially identical.
261. And, in fact, our measures of the gap and of the overlap, see infra note 188, are highly correlated (-0.76).
262. Actually, there were nineteen salient cases in the 1991 Term, but Justice Souter was in dissent in two and did not participate in one.
263. 505 U.S. 833 (1992).
264. Put simply, the overlapping coefficient (OVL) provides a measure of agreement of two distributions (here, the Justices' preference distributions). If the OVL is O, then the distributions do not overlap; if the OVL is 1, then the distributions are the same. For more details, including the formula used to calculate the OVL when the standard deviations of the distributions differ (as they do for the Justices), see Edwin L. Bradley, The Overlapping Coefficient, in ENCYCLOPEDIA OF STATISTICAL SCIENCES (2006), http://mrw.interscience.wiley.com/emrw/9780471667193/ess/article/ess1900/ current/html (paid subscription). Also available is a Stata module, which estimates the OVL. See Data Analysis and Statistical Software, http://www.stata.com (last visited Sept. 8, 2008).
265. The mean of the overlap is 0.239, with a standard deviation of 0.184. The range is 0.004 (minimum) to 0.719 (maximum).
266. For more details on the overlapping coefficient, see supra note 188.
267. For Justices Stewart and White, the overlapping coefficient was 0.957. This was second only to Justices Brennan and Marshall in 1968 (0.963).
268. As was the case for the gap, see supra note 172, our analysis of the overlap and membership in the opinion coalition in important cases fails to provide support for the hypothesis of a negative and statistically significant relationship. The resulting OLS coefficient attains statistical significance but is positive (meaning that the larger the overlap, the more likely the median is to find herself in the coalition). For membership in the majority vote coalition, the relationship runs in the hypothesized direction (negative) but is not statistically significant. The overlap is, to a statistically significant degree (p<0.05), associated with all other measures of median dominance, and the relationship is negative (just as we would expect if smaller overlaps lead to strong swings).
269. The 95% confidence interval is [73.90, 83.50].
270. The 95% confidence interval is [51.20, 67.90].
271. We refer here to the lower bound of the 95% confidence interval. See supra note 191.
272. With a 95% confidence interval of [19, 28].
273. See supra note 177. 2.63, with an upper bound of 10.42.
274. The expected percentage is 7.83% [5.29, 10.38].
275. For more details on the data underlying this figure, see supra notes 35, 68, 73, 168.
276. To create this figure, we used LONG & FREESE, supra note 180. Because the lower bounds of the confidence interval dip below zero for the two highest levels of convergence, we do not depict them.
277. One worthwhile line of inquiry for future work to test the relative power of medians beyond those factors we tested here would be to ascertain whether some medians, and particularly super medians, can influence other Justices' voting behavior more than others. It would be possible to test whether some medians are more or less able to shape their colleagues' votes, thereby influencing case outcomes, by comparing rates of change between conference votes and final votes.
278. As far as we can tell, Keith Krehbiel framed the term "move-the-median" to describe strategic interactions over Supreme Court appointments. Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 AM. J. POL. SCI. 231, 232 (2007).
279. But as Krehbiel notes, other scholars have developed move-the-median games, which he defines as "models that capture not only interinstitutional politics of appointments but also finalstage decision making via collective choice." Id.
280. For examples pertaining to the Supreme Court, see Byron J. Moraski & Charles R. Shipan, The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices, 43 AM. J. POL. SCI. 1069, 1071 (1999);
281. David W. Rohde & Kenneth A. Shepsle, Advising and Consenting in the 60-Vote Senate: Strategic Appointments to the Supreme Court, 69 J. POL. 664, 666 (2007).
282. See, e.g., Krehbiel, supra note 203;
283. Moraski & Shipan, supra note 203.
284. The extent to which the President must take into account the Senate's preferences depends on the institutional configuration among the President, the Senate, and the Court median prior to the vacancy being filled. See Moraski & Shipan, supra note 203, at 1075.
285. On some accounts, the ideal point of the outgoing justice is also important. Krehbiel, supra note 203, at 234.
286. P.S. Ruckman, Jr., The Supreme Court, Critical Nominations, and the Senate Confirmation Process, 55 J. POL. 793, 793-94 (1993).
287. Critical nominations-where there is a one-member partisan split on the Court, a partisan deadlock, or an attempt to establish a new partisan majority-result in a 42% rejection rate, whereas the rejection rate for all other nominations is 15%. Id. at 798.
288. Krehbiel, supra note 203, at 234;
289. Rohde & Shepsle, supra note 203, at 676.
290. Krehbiel, supra note 203, at 234;
291. see also LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT 137-40(2005).
292. What if a Justice to the right of Kennedy departed under a Democratic regime? Any appointment to the left of Breyer would place Breyer in the center seat. As a result, five-to-four majorities (which would include the new appointee and Breyer) would ensure mostly liberal outcomes.
293. We base this on a comparison of Obama's (-0.343) Common Space scores and Justice Fortas's (-0.404) and Justice Ginsburg's (-0.429) mean Judicial Common Space scores. Obama is to the right of Fortas and Ginsburg, but only marginally so. Keith Poole's Common Space scores are available at http://www.voteview.com/ DWNL.htm. Lee Epstein, Andrew D. Martin, Jeffrey A. Segal and Chad Westerland's Judicial Common Space scores are available at http://epstein.law.northwestern. edu/research/JCS.html. See also Lee Epstein et al., The Judicial Common Space, 23 J.L. ECON. & ORG. 303 (2007).
294. Our data are the Judicial Common Space scores. Epstein et al., supra note 210. Rawlinson's score is -0.24 and Salazar's is -0.22.
295. Judge, U.S. Court of Appeals for the Ninth Circuit.
296. U.S. senator (D-Colo.). We selected Rawlinson and Salazar as exemplars because their Judicial Common Space scores are readily available, Epstein et al., supra note 210, and because their names appear on at least one prominent list of possible Supreme Court nominees. Posting of Tom Goldstein to SCOTUSblog, The Democratic (Not So) Short List, http://www.scotusblog. com/wp/the-democratic-not-so-short-list/ (July 12, 2007, 11:12 EST).
297. A caveat, however theoretical, is in order: If a Justice actively and strategically sought to maintain (super) median status, an attempt to dilute his or her power could backfire. Filling the gap to the median's left could induce the median to move right in an effort to maintain the maximum possible remaining gap.
298. The locations of the possible nominees are based on their Judicial Common Space scores. See supra note 210.
299. See, e.g., Joan Biskupic, Justice Kennedy Takes Significant Spot in the Center: He Wields Crucial Tiebreaking Vote in Supreme Court, USA TODAY, May 11, 2007, at 2A ("Through the years, Kennedy has angered justices and politicians, both conservative and liberal.");
300. Jason DeParle, In Battle to Pick Next Justice, Right Says Avoid a Kennedy, N.Y. TIMES, June 27, 2005, at Al ("For more than a decade, Justice Kennedy has infuriated the right . . . .");
301. Dana Milbank, And the Verdict on Kennedy Is: Guilty, WASH. POST, Apr. 9, 2005, at A3 (noting that some conservative leaders believe that "Kennedy . . . should be impeached, or worse").
302. McCain's (Poole) Nominate score of 0.287 puts him to the right of Justice Kennedy and, actually, quite close to Scalia's 2006 Term ideal point estimate.
303. What if a Justice to the left of Kennedy retires under a Republican regime? Because Roberts's and Alito's ideal points are so close together, our analysis suggests that a Republican President, operating with a Republican Senate, could appoint a nominee at his exact preference, without concern of producing an overly powerful median.
304. See supra note 216.
305. We should note that here we propose appointing a more centrist Justice than may suit McCain. But diluting the median's power is not always conditional on appointing centrist judges to divide the gap. Imagine if Vice President Gore had won the presidency in 2000 - would Justice Kennedy still have emerged as a super median? Had a Democratic regime replaced Justice O'Connor and Chief Justice Rehnquist, if even one of those vacancies had been filled by a judge with preferences lying anywhere on the spectrum to the left of Kennedy, Kennedy would not be the median at all; Breyer would have become the median. But Breyer would not have been a super median; the extent of the overlap between Breyer, Ginsburg, and Souter's distributions would have rendered Breyer a median of only modest power. (And if both new Justices were to the left of Breyer, Ginsburg, or one of the new Justices, would have become the median.)
306. Judge, U.S. Court of Appeals for the Sixth Circuit.
307. Former Judge on U.S. Court of Appeals for the Fourth Circuit, currently General Counsel for the Boeing Company. We highlight Cook and Luttig for the same reasons we use Salazar and Rawlinson: their Judicial Common Space scores are readily available, Epstein et al., supra note 210, and their names appear on at least one prominent list of possible Supreme Court nominees.
308. See Joseph Curl, Bush Urges Quick Confirmation to Court, WASH. TIMES, July 17, 2005, at A2;
309. Posting of Tom Goldstein to SCOTUSblog, The Republican (Not So) Short List, http://www.scotusblog.com/wp/the-republican-not-so-short-list-2/#more- 5773 (July 23, 2007, 16:17 EST).
310. Judge, U.S. Court of Appeals for the Tenth Circuit.
311. On the other hand, her age may be a factor. Born in 1946, she is older than Cook (1952) and Luttig (1954).
312. To the extent that Justices prefer to join the majority opinion rather than dissent or concur, the writer of the potential majority opinion should have some leeway to shape the law in her preferred direction, by leveraging that preference to join. This could explain why concurrences have gone up as the number of cases the Court takes has decreased - with fewer cases, the preference to join the majority is lower, as Justices have more time to write separately.
313. 128 S. Ct. 2229 (2008).
314. Robert Barnes, Justices Weigh Courts' Role in Detainee Cases, WASH. POST, Dec. 5, 2007, at A20.
315. Linda Greenhouse, Justices Ready to Answer Detainee Rights Question, N.Y. TIMES, Dec. 6, 2007, at A32.
316. In Boumediene, Kennedy delivered the opinion of the Court for a minimumwinning majority of five. See Boumediene, 128 S. Ct. 2229.
317. See Pablo T. Spiller & Emerson H. Tiller, Invitations to Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. & ECON. 503 (1996);
318. Baird & Jacobi, supra note 60.
319. See supra note 34.
320. See, e.g., Poole, supra note 34, at 435.
321. See, e.g., KEITH T. POOLE & HOWARD ROSENTHAL, CONGRESS: A POLITICAL-ECONOMIC HISTORY OF ROLL CALL VOTING 5 (1997) ("For most of American history, the structure is indeed one-dimensional . . . . A second continuum was most important during two periods when the race issue was central to American politics.").
322. 437 U.S. 153 (1978).
323. Spiller and Tiller argue that the Court did this safe in the knowledge that Congress would override its decision. Spiller & Tiller, supra note 229, at 511-14.
324. Baird & Jacobi, supra note 60, at 1.
325. 527 U.S. 627 (1999).
326. See Matthew Sag, Tonja Jacobi & Maxim Sytch, Ideology and Exceptionalism in Intellectual Property - An Empirical Study, 97 CAL. L. REV. (forthcoming June 2009).
327. For analysis and other examples of "disordered voting," that is, coalitions of Justices that cross a typical ideological divide, see Paul H. Edelman et al., Measuring Deviations from Expected Voting Patterns on Collegial Courts (Vanderbilt Law and Economics Working Paper No. 07-31, 2007), available at http://ssrn.com/abstract=998297.
328. Examples include Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184, 195-98 (1964) (Brennan, J., joined by Warren, Black, Clark & Goldberg, JJ.) (finding Alabama liable for suit under the Federal Employers' Liability Act, due to state waiver of immunity from suit);
329. see id. at 198 (White, Douglas, Harlan & Stewart, JJ., dissenting) (arguing that absent an express state waiver, the statute should not be applicable).
330. For more on this point, see infra Conclusion.
331. See, e.g., JAN CRAWFORD GREENBURG, SUPREME CONFLICT (2007) (suggesting that the Justices' personal attributes help or hinder their ability to attract votes for their opinions);
332. JEFFREY ROSEN, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA (2006) (recounting how personalities and personal rivalries have transformed the law); Lithwick, supra note 127, at B1. We leave it to others to conduct explicit tests of the argument that the Justices' biographies themselves do not determine super status. But the fact that Justices swing in and out of super median status seems to us to provide strong evidence consistent with-if not entirely proof positive of-the claim that median power is not inherent to judicial personality or experience.