Is Justice Barrett “Solidifying Herself as the Swing Justice”?
In a recent post, Josh Blackman writes that “Justice Barrett is solidifying herself as the swing Justice,” citing a recent analysis by Adam Feldman of Legalytics. As someone who follows the Court quite closely, this did not seem right to me. It turns out my skepticism was warranted.
The primary point of Feldman’s analysis, “The Myth of the Modern Swing Vote,” is that there is no Justice Kennedy-style median justice on the current court. Rather, there is a more complex dynamic among the Court’s six conservative justices that results in shifting coalitions depending upon the subject-matter and salience of the case at hand. But even with that caveat, and if one solely wishes to focus on which conservative justice’s vote is most often in play to form a majority with multiple liberal justices, Feldman’s analysis does not point to Justice Barrett. Indeed, it expressly rejects that position.
On the “central question” of “Which conservative justices act as swing votes—and under what conditions?” Feldman writes:
To answer this, I analyzed each instance where a conservative justice—Roberts, Kavanaugh, Barrett, Gorsuch, Alito, or Thomas—joined at least two liberal colleagues (Breyer, Sotomayor, Kagan, or Jackson) in forming the majority in a 5–4 or 6–3 decision. These are the votes that shift outcomes and signal ideological movement.
The results were clear—and revealing.
Chief Justice John Roberts was the most frequent swing vote, joining liberal-majority coalitions 31 times. Justice Brett Kavanaugh was close behind with 30 swings, followed by Justice Amy Coney Barrett, who broke ranks in 22 decisions. By contrast, Justice Gorsuch did so just 14 times, and Justices Thomas and Alito remained
Article from Reason.com
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