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Hastings Constitutional Law Quarterly

Abstract

This Article, the twelfth in a series, attempts through statistical analysis to determine whether individual Supreme Court Justices and the Court as a whole voted more "conservatively," more "liberally," or about the same in the 1996 Term as compared with past terms. Overall, the 1996 Term reflects consolidation rather than expansion of the current Court's conservatism. Although the marked increase in the Court's rejection of First Amendment claims this Term is atypically conservative, this movement may well be due to cross-cutting ideological issues in the cases decided, not substantive rejection of liberal free speech norms. Moreover, the most politically liberal members of the Court often vote as a bloc in supporting the federal government and in favoring statutory civil rights claims, suggesting that liberal forces on the Court are not quiescent. That reality is underscored by swing vote analysis showing once again this Term that whichever ideological wing captures Justices Kennedy's vote obtains the power to decide the Nation's most controversial cases. The ideology of the Rehnquist Court, in sum, is mature and ripe for change. The next replacements on the Court will either energize the Court's extant (but somewhat quiescent) conservatism, or tip the balance of power in favor of an already established liberal wing.

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