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Hastings Constitutional Law Quarterly

Abstract

This Article, the eleventh in a series, attempts through statistical analysis to determine whether individual Justices on the United States Supreme Court (as well as the Court as a whole) voted more "conservatively," more "liberally," or about the same in the 1995 Terms as compared with past terms. The 1995 figures reveal a Court in ideological tension. Although some statistical measures suggest conservatism on the High Bench, there are notable contrary liberal indicators as well (principally in the areas of state criminal cases, federal jurisdiction, and First Amendment claims). Indeed, regression analysis demonstrates that the 1995 "liberal" movement in state criminal cases by the Court's three most "conservative" members (the Chief Justice and Justices Scalia and Thomas) is statistically significant. Perhaps the most important (although least surprising) statistics are those that demonstrate the Court's identifiable division into two wings: a "liberal" coalition composed of Justices Stevens, Souter, Ginsburg and Breyer, and a "conservative" bloc composed of the Chief Justice and Justices Scalia and Thomas. Justices Kennedy and O'Connor remain between these two factions, casting the deciding votes in the most hotly contested cases. The voting behavior of these moderate "swing" voters has caused the Court to vacillate markedly between liberal and conservative outcomes during the past four Terms. This ideological dynamic is likely to be altered only by resignations and replacements on the Court.

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