Conservative Court?

Theodore Ruger truger at law.upenn.edu
Tue Nov 1 08:15:04 PST 2005


Further to Mark's point about relative conservatism/liberalism on the 
Court, the prospect of Alito replacing O'Connor will almost certainly 
increase the importance of Justice Kennedy at the center of the court's 
voting array, and raises some interesting questions about his future 
voting behavior.  (I'm assuming, safely I think, that both Roberts and 
Alito will be relatively more "conservative" than O'Connor/Kennedy as 
measured in a linear ideological space over the Court's entire 
docket--and I'm sensitive to Sean Wilson's point, which I just read 
after drafting the rest of this email, that some issue areas don't fit 
well on a single space--but Kennedy/OConnor were median voters across 
various issue areas).  For the past decade or so both Kennedy and 
O'Connor have vied for, and often shared, the crucial role of median 
voter on the Court across a number of close issue areas.  Alito's 
appointment will not necessarily "move the Court to the right" in the 
short term, but it will undoubtedly thrust Kennedy into a new position 
as the Court's sole median in many issue areas as opposed to the dual 
role he and O'Connor occupied for many years.    

Rather than ask "How will Alito vote?", then, the real question we 
should be asking is "How will Kennedy vote when he has the median 
ideological space largely to himself?"  Here the attitutinalist and 
institutionalist perspectives give quite different answers.  The 
attitudinal model would say that Kennedy will continue to vote his 
sincere preferences, and his votes (and thus the Court's results in many 
areas) won't change much, except in areas where he and O'Connor 
diverged.  Under a more strategic view, though, O'Connor's replacement 
by Alito unclutters the institutional center of the Court, leaving 
Kennedy newfound latitude to drift as far "right" as Roberts or as far 
"left" as Souter/Breyer while still maintaining his 
outcome-determinative median status.  My sense is that this new 
latitude--if it produces changes in Kennedy's voting at all--is more 
likely to become manifest in the conservative direction, since even 
before this fall he had four collegues on O'Connor's left to join him 
whenever he wanted to drift in that direction (e.g. Lawrence v Texas).

Ted

Theodore W. Ruger
Assistant Professor
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA 19104
(215) 573-6018


Mark Graber wrote:

>I take it the Maltz/Wilson debate highlights a difference between a
>certain kind of political science research tradition and a more legal
>tradition (of which some political scientists, myself included,
>identify).  I think Professor Maltz would agree that in some sense the
>Rehnquist Court is more conservative than a court composed of nine law
>professors drawn at random or probably even nine lawyers drawn at
>random.  He almost certainly would agree that Rehnquist is more
>conservative than, say, Ginsburg.  But, when political science research
>is being correctly specified, all it can say is whether a justice is
>more conservative than another justice.  For the most part, for example,
>proponents of the attitudinal model have not produced any evidence that
>Rehnquist votes the way he does because he is a conservative.  What they
>have produced is lots of evidence that Rehnquist votes more
>conservatively than Ginsburg because Rehnquist is more conservative than
>Ginsburg.
>     But Maltz is asking the substantive question, not the comparative
>question.  Granted this court is more conservative than it could have
>been when compared to other judicial appointees, how conservative is it,
>for example, with respect to conservatism as defined by the National
>Review.  And, the probable answer is, "not very."  The best point here
>may be Tushnet.  The court reflects a certain country-club conservatism,
>but is neither yet conservative (really libertarian) in the image of
>Cato or socially conservative.
>
>Mark A. Graber
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