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Hastings Constitutional Law Quarterly

Abstract

This Study, the twenty-second in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2007 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. 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.

The voting patterns tabulated by the 2007 Study reveal (as should be expected) a somewhat unsettled Court. The areas most indicative of bias diverged in opposite directions. Most surprising has been the voting behavior of the more liberal Justices in a more conservative bent. Justices Ginsburg and Breyer voted conservatively in civil-state cases-an area that is the second most indicative of ideological bias on the Court. On Table 2, Justices Souter, Ginsburg, and Breyer voted toward the conservative side of the liberal bloc. Table 3, the most indicative of bias, revealed a decidedly conservative leaning. When considered as a whole, however, the ideological posture of the Court appears to lean liberally.

As for individual voting behavior, some of the Justices are voting somewhat uncharacteristically. For example, factor analysis highlights Tables 1 and 3, civil-state and criminal-state cases, as the most indicative of bias. Those Tables, however, shake up the classic five/four, conservative/liberal divide on the Court. Interestingly, Justices Ginsburg and Breyer cast the majority of their votes with the government on Table 1-the second most reliable indicator of bias this Term-falling in with the most conservative Justices on civil-state cases. Also, Justice Thomas joined Justice Kennedy in being the determinative vote for closely decided cases. As we noted last Term, a change in the ideological orientation of only a single Justice, in such circumstances, can dramatically impact the outcome across the entire range of issues examined by this Study.

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