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Hastings Constitutional Law Quarterly

Abstract

The 2003 Term, for the second year, notes a liberal trend across a majority of the Tables of this Study. The voting behavior of individual Justices in 2003 was somewhat more stable this Term in that individual departures from past voting behaviors were less pronounced than in 2002. Nevertheless, the Study still demonstrates continuing instability in the voting behavior of individual Justices. This Term, statistically significant departures from past behavior by at least five Members of the Court are present on six Tables. This might suggest that the voting behavior of the Justices on these Tables is "in transition," although the often-small statistical samples reported on many of these Tables also suggests caution in making (or relying upon) this inference. Bloc voting continues to control the outcome of a substantial number of the most controversial questions presented to the Court. But, as noted in the past few Studies, the voting power of conservative voting blocs seems to be "losing steam." Justice O'Connor maintained her position as the Member of the Court most likely to cast the key swing-vote in closely divided opinions. The Study also demonstrates that Justice O'Connor's voting behavior in state criminal cases has been a reliable indicator of the outcome of Majority Opinions in this category for a number of years. Her absence might alter decisional outcomes, not only in state criminal cases, but in the often-important cases decided by five-to-four votes of the Court.

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