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Today’s entry: How liberal has retiring Supreme Court Justice Stephen Breyer’s voting record been?
Bottom Line: It was none other than Justice Breyer himself who famously said this during the “court-packing” debate last year: What goes around comes around. And if the Democrats can do it, the Republicans can do it. Aside from that logical deduction, as part of his opposition to the court-packing proposals, he also pointed out that the court isn’t ideological. That’s a surprise to most casual observers of the Court, but even to many news junkies who commonly will discuss it in the context of the “conservative” and “liberal” justices.
As is often the case, over-generalizations are often presented as reality. To be sure, to the extent Justices rule with an ideological bend, Breyer has been left of center. That said, it’s historically been highly overstated. This is a topic I’ve covered over the years with the help of the University of Washington Supreme Court Database - the ultimate repository of Supreme Court Decisions. The first and biggest surprise for many is that over 70% of the court’s rulings have been non-ideological, consensus rulings. That means over 70% of cases are decided outside of perceived ideological lines
That’s the reality that backs up Breyer’s assertion that the court isn’t ideological. The solid majority of the time it isn’t. The prominent reason it feels different is that while most Supreme Court cases don’t receive meaningful news coverage, the high-profile cases which do are commonly decided with apparent ideological interpretations of the law.
Here are how the Justices’ breakout ideologically on split decisions:
- Moderates: Kavanaugh, Roberts, Barret
- Partisan: Gorsuch, Breyer, Kagan, Alito
- Highly-Partisan: Sotomayer & Thomas
What this also illustrates is why many conservatives don’t feel as though the court is as “conservative” as a perceived 6-3 majority would suggest. In addition to Sotomayer and Thomas effectively canceling each other out on ideological rulings, we see that essentially Breyer is a partisan as Gorsuch and Kagan are about as partisan as Alito. In split decisions, those are often 3-3 rulings with the three right-of-center moderates left. And this takes us full circle. The question was specifically about Breyer. How liberal has he been? Justice Breyer is currently the 4th most partisan Justice on the Supreme Court and the most moderate of the so-called “liberal” wing.
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