Part 1: The real story of Anthony Kennedy and myth of swing justices

posted by Brian Mudd - 

Part 1: The real story of Anthony Kennedy and myth of swing justices 

Bottom Line: In many respects the media doesn't have the influence over society the way it once did or that many of us are still inclined to assume that it does. There are a myriad of examples but the most obvious is the current occupant of the White House and the fact that in the 2016 election cycle there were more elected Republicans in the United States than at any other time since 1928. That's not to say the media can't occasionally effectively brand a significant player in our government.  

If you knew nothing else about Supreme Court Justice Anthony Kennedy – you'd probably think he's a "moderatejustice or a swing vote on the court. Over his career there certainly are individual rulings that fit that mold but on balance you'd probably be surprised. A few years ago, there was a New York Times analysis of how commonly each justice voted with one another. Here's Anthony Kennedy's score card (this was prior to the passing of Justice Scalia) 

Percentage of the time he voted with the following justices: 

  • Roberts: 88% 

  • Alito: 86% 

  • Thomas: 84% 

  • Scalia: 82% 

  • Breyer: 81% 

  • Sotomayor: 80% 

  • Kagan: 80% 

  • Ginsburg: 76% 

If you're following along the first surprise might be how often they all seem vote together (about three-quarters of the time). If you're surprised it's likely due to the media's propensity to only focus on high-profile cases that often are split decisions that seem to break along perceived ideological lines. The court averages taking on 130 cases per year but think of how many you're familiar with – probably no more than a few per year unless you're a real analyst of the Supreme Court. What this also tells you is that there's still a lot of legal wrangling at the highest levels that isn't necessarily ideological. In the second part of today's story I'll breakdown the rulings that are split decisions on perceived partisan lines and how conservative the most conservative justices really are and how liberal the most liberal justices are based on their voting records. You'll be surprised... 

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