SPRING 2014
FEATURE
tually are. Though the ability to draw
decisive conclusions is limited based
on the relatively few number of landmark decisions in the last forty years,
the anecdotal story lines indicated by
this basic statistical analysis is worthy of
additional discussion and investigation.
P
Figure 3
only at the president appointing the justice and not the composition of the Congress that confirmed him or her; a justice
that is confirmed by a supermajority is
likely to be much less moderate than one
who is not. Another important caveat to
our analysis is that some part of the story
may be hidden in the use of a statistical
average. After all, there is a fair amount
of unanimous consent amongst judges,
as was discussed in the preceding section. Therefore, the unanimous and nearunanimous cases probably pull average
vote margins upwards; perhaps more deviation between observed and expected
margins would be observed if only the
most contentious cases were considered.
Part III: Landmark Decisions
P
ut simply, landmark decisions are
those that establish a new legal
principle, concept, or test, that
change the way law is interpreted, and/
or that reverse precedent of previous
court decisions. Though the exact classification of each individual case as landmark or non-landmark is not universally
agreed upon, we identified ten potentially
landmark cases between 1974 and 2012
using a database created by the Public
Broadcasting Service (PBS). These cases
include: Boerne v. Flores (1997), Bowers
v. Hardwick (1986), Bush v. Gore (2000),
Casey v. Planned Parenthood (1992),
Hamdam v. Rumsfeld (2006), Lawrence
v. Texas (2003), Regents of University
of California v. Bakke (1978), Stenberg
v. Carhart (2000), U.S. v Lopez (1995),
and United Steel Workers of America v.
Weber (1979). The key research question of this section of analysis is how
vote margins of these fairly important
landmark cases compare to those of
non-landmark cases. Though this comparison can be done in a variety of ways,
some basic descriptive statistics suggest
that landmark cases are decided by narrow margins much more frequently than
non-landmark cases. More specifically,
the average vote margin of all landmark
cases was 1.8, as compared to 5.6 for
all non-landmark cases. Moreover, the
mode (i.e. most frequent) margin of the
landmark cases was one, which was the
vote margin in the majority (sixty percent) of the ten landmark cases we analyzed. In contrast, the mode of the nonlandmark cases was nine, which was the
vote margin in a plurality (thirty-three
percent) of the non-landmark cases. This
presents some interesting questions for
advocates of the Court’s ability to adjudicate impartially. More specifically,
even if the majority of cases are not decided by one vote, it seems as though
the majority of landmark cases – arguably some of the most important – ac-
Conclusion
erhaps the biggest weakness in the
kind of empirical method we have
employed is that it can miss the
nuances of individual justices’ behavior.
In today’s Supreme Court cases, Justice
Anthony Kennedy is often the swing
vote; for example, in the 2008 case of
Boumediene v. Bush, Kennedy sided with
the Democrat-appointed justices to form
the majority. Four years later, in the 2012
case of National Federation of Independent Business v. Sebelius (the “Obamacare” decision), it was Chief Justice
Roberts who forged the majority with
the liberal justices. Empirically, both
of these cases would be represented as
a 5-4 split, but there is far more nuance
to these two decisions than the vote margins alone would indicate. Nonetheless,
it is our hope that this study represents a
contributing step in understanding the effects of polarization and politicization on
the nation’s highest court. In analyzing
the data collected, several conclusions
can be drawn: first, the relative vote frequencies of both nine-vote and one-vote
margins has increased in the modern era
of the Supreme Court, but almost half of
all decisions are still unanimous. Second,
the average vote margin closely – but not
perfectly – mirrors the margin that would
be expected if justices appointed by the
same political party voted together. Finally, when dealing with landmark issues, justices behave differently than
normal; landmark cases are decided by
one vote the majority of the time, which
may be troubling to some given how
much importance these cases can have.
All in all, whether the Court’s impartiality is a practical reality or merely a theoretical ideal remains open for debate.
13