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Hastings Constitutional Law Quarterly

Abstract

The results of the 2002 Study - as with the Study last Term - reveal continued polarization and voting instability on the United States Supreme Court. Only two categories of cases, Civil/State and Civil/Federal, were decided by predominantly unanimous opinions. Yet, while the Justices voted in fairly consistent "conservative" and "liberal" blocs, neither wing of the Court seems able to consistently garnish the "fifth vote" crucial to a definitive liberal or conservative trend. As a result, the Rehnquist Court may have lost its conservative momentum. The data suggest several possible explanations for this development. Justice O'Connor is again the Court's most consistent "fifth vote" in closely divided cases. The relatively unpredictable nature of Justice O'Connor's voting behavior may dampen ideological movement in either a conservative or liberal direction. Furthermore, the data this Term demonstrate that several Justices have departed (in a statistically significant sense) from past voting practices. In short, the 2002 Study suggests that the United States Supreme Court has become more polarized, more fragmented and even less predictable than in the 2001 Term. This on-going polarization and fragmentation may well become a matter of political debate should a Member of the Court retire in the near future.

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