Hastings Constitutional Law Quarterly


This Article is the thirteenth consecutive annual study tabulating and analyzing the voting behavior of the United States Supreme Court. This Article examines the Court's voting behavior during the 1997 Term. The study attempts to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same as compared with past Terms.

Whether a vote is considered "conservative" or "liberal" depends upon the issues being decided. Generally, votes favoring the assertion of governmental power are "conservative," while votes favoring claims of individual liberty are considered "liberal." The issues are categorized into ten different types of cases: Civil-State Party (state government versus a private party), Civil-Federal Party (federal government versus a private party), State Criminal Cases, Federal Criminal Cases, First Amendment Cases, Equal Protection Cases, Statutory Civil Rights Cases, Jurisdiction (cases raising a challenge to the exercise of federal jurisdiction), Federalism Cases, and Swing-Vote Cases.

The voting behavior of the 1997 Term indicates overall liberal movement in most categories with the exception of the State Criminal Cases category, which showed true conservative movement. This movement, together with the continued uneasy balance of power in swing-vote cases (favoring liberal decisions this term), may signify a retreat from last Term's somewhat conservative posture. Also contributing to this Term's liberal shift may be the increased number of cases implicating issues of federalism and federal jurisdiction. In these categories, the Court consistently voted in a liberal manner, finding in favor of the United States and for the exercise of jurisdiction. Because these categories are ideologically charged, the liberal shift evidenced this Term may be more than a mere indicator of the Court's fading conservative allegiance - it may be evidence that a shift towards a primarily liberal balance-of-power is well underway.