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Hastings Constitutional Law Quarterly

Abstract

This Study, the twentieth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2005 Term. The analysis is designed to measure whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. As in politics, whether a judicial trend is "conservative" or "liberal" often lies in the eye of the beholder. On such a point, members of the American Civil Liberties Union and the Federalist Society for Law and Public Policy Studies might well disagree.

This Study attempts to remove this subjectivity by applying the following consistent classification scheme to ten categories of cases across time: "conservative" votes are those that favor an assertion of governmental power, while "liberal" votes are those that favor a claim of individual liberty. By tracking the term-to-term conservative or liberal changes in the voting patterns of individual Justices and the Court as a whole across these ten categories, and by applying standard statistical tests to the resulting data, this Study attempts to provide reliable information regarding the current ideological posture of the Court and its members, as well as conclusions and projections regarding its past and future trends. Whether statistical analysis of a complex and subjective process (such as judicial decision-making) provides useful information may well be debatable. But, within the limitations inherent in an attempt to "number crunch" ideology, this annual survey offers students and practitioners information that is useful for assessing how the Court or an individual Justice has voted-and may vote in the future-in particular categories of cases.

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