Lawyer Michael Dorf assesses the impact of Justice Kavanaugh, the replacement for Justice Kennedy, on SCOTUS:
Or is it? Some statistics (available from SCOTUSblog) suggest that the substitution of Kavanaugh for Kennedy has had little effect. Last Term, Justice Kavanaugh was in tight agreement with Chief Justice Roberts (92%) and in nearly as tight agreement with Justice Alito (91%). The only pair of Justices that were even closer to one another were Ginsburg and Sotomayor (93%). Meanwhile, Kavanaugh agreed with Gorsuch no more often than Kavanaugh agreed with Kagan (70% each). That’s quite similar to Justice Kennedy’s last Term on the Court, when he agreed most often with CJ Roberts (90%) and was actually more likely to side with the other conservatives over the liberals than was Kavanaugh in his first Term. Could the substitution of Kavanaugh for Kennedy have moved the Court to the left?!
Further statistical evidence for that arresting hypothesis comes from the fact that in the last Term there were actually more 5-4 decisions in which the four liberals voted as a bloc and picked up one of the conservatives than in which all five conservatives voted as a bloc. And the evidence isn’t just statistical. Remember I promised to say something further about the Bladensburg Cross case: Well there, Justice Alito’s majority opinion was joined in full by Roberts, Breyer, and Kavanaugh, as well as in substantial part by Kagan. They were outflanked to the left by Ginsburg and Sotomayor and to the far right by Thomas and Gorsuch. The Alito opinion was balanced and moderate (even if I didn’t agree with everything in it). Could we be witnessing a new pattern in Roberts Court version 8, in which there is a moderate bloc of left-leaning centrists (Breyer and Kagan) plus right-leaning centrists (Roberts, Alito, Kavanaugh), and then a liberal bloc (Ginsburg and Sotomayor) and a very conservative bloc (Thomas and Gorsuch)?
And so we can anticipate that, after all that row over allegations, the Court is really fairly much the same?
I think that’s a real phenomenon that will continue to show up occasionally, but as a general account of the Court the short answer is NOOOOOOOOOO! The idiosyncrasies of a single Term are just too great to permit any substantial generalization.
Context is everything:
To be clear, I understand that lawyerly distinctions can be and were drawn between those cases and other cases in which the conservatives did not defer to agency action. It’s not all politics. But anyone who pays the slightest bit of attention understands that there’s an awful lot of politics. And for now, the politics of support for a Republican administration tempers the conservatives’ hostility to the administrative state. It won’t always.
Bloc analysis of the Court is always interesting for what it may reveal of its personality and views – and how they sometimes change. For example, my impression has been that Justice Thomas has been creeping further and further right, and he was no lefty to begin with, while Alito and Ginsburg do not appear to be moving much, if at all.
Roberts remains a bit of a cipher.
