Part 2: The real story of Anthony Kennedy and myth of swing justices - Kennedy's record
Bottom Line: In the first part of today's story dispelled the first myth of the Supreme Court – that it's commonly highly partisan. With over ¾'s of justices voting together on average that's simply not the case. In today's second part I'll look at cases through an ideological lens. Washington University's School of Law's Supreme Court Database showed that on split decisions in which 5 justices decided the outcome, Kennedy broke with the "conservatives" on the court 71% of time. Using that barometer here's the ideological breakout on the court Pre-Gorsuch:
Alito: 84% conservative
Roberts: 82% conservative
Scalia: 81% conservative
Thomas: 80% conservative
Kennedy: 71% conservative
Breyer: 21% conservative
Sotomayor: 19% conservative
Kagan: 18% conservative
Ginsburg: 15% conservative
A couple of interesting takeaways. First, the most conservative justice – Alito – is virtually as conservative as the most liberal justice – Ginsburg is liberal. Second is that while Kennedy has been the least conservative of the perceived "conservative" block of judges – he's far more conservative than not. His voting record is only 9% less conservative than Clarence Thomas – the nearest conservative and 50% more conservative than Steven Breyer – the nearest liberal. For this reason, it'd take a rock-solid conservative to really move the ideology of the court further to the right. Aside from a few high-profile decisions – Kennedy's record wasn't really what the reputation suggests. This does clearly demonstrate how important it is for Trump to get this nomination right...