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Q&A – How Liberal Has Justice Stephen Breyer’s Voting Record Been?
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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 this – in the Roberts-Era of the Court...
- 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 – commonly with unanimous decisions. That’s the reality which 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. Before diving into the ideological differences of Justices, here’s a view of how they’ve most recently voted. In the previous term, here’s how often each of the Supreme Court Justices voted with the majority opinion across all cases:
- Kavanaugh: 93%
- Roberts: 88%
- Barrett: 83%
- Gorsuch: 63%
- Breyer: 61%
- Kagan: 59%
- Alito: 55%
- Thomas: 49%
- Sotomayor: 49%
If nothing else this is an interesting exercise in which we see Brett Kavanaugh has been the table setter for majority opinions having exceeded the Chief Justice John Roberts in that regard. Few and far between are the opinions in which Kavanaugh descents. It might also serve as a surprise that the two least agreeable Justices, who’ve disagreed with most court opinions, are at the opposite end of the perceived ideological spectrum from one another. That doesn’t mean they were most commonly agreeing with one another – though commonly that did happen – but it’s actually an indication of those two being the most likely to rule along ideological lines. Regardless of ideology, the more likely justices are to rule with the majority, the less likely they are to be differing along ideological lines. So, here’s what this illustrates about the current court. Here’s the order of justices ranked by how ideological their rulings are starting with the most partisan:
- Sotomayor & Thomas
- Alito
- Kagan
- Breyer
- Gorsuch
- Barrett
- Roberts
- Kavanaugh
What this means is that Sotomayor is as liberal in her rulings as Thomas is conservative in his and Kavanaugh is the least ideological Justice on the court with Roberts not far behind. What this exercise also shows is three different ideological lanes as opposed to two (conservative & liberal). 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 is 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.