Guest post – SCOTUS OA

This week we have another guest blogger, a Northwestern Pritzker law student, Sydney Black. Sydney agreed to turn her excellent paper for Tonja Jacobi’s Supreme Court cases seminar into a ScotusOA post. In this post, Sydney uses content analysis to investigate Justice Brett Kavanaugh’s claim to be an originalist.

What we know so far: Kavanaugh’s claim to originalism not borne out

By Sydney Black

When asked at his Supreme Court confirmation hearing whether he was an “originalist,” then-Judge Brett Kavanaugh answered, simply and directly, “That’s correct.” Yet some suggested Kavanaugh would likely place far less value on history than the title “originalist” would suggest. The natural question is: of the cases we have seen so far, has Kavanaugh stood by his promise of originalism?

There are two ways in which Kavanaugh could show his originalist colors: 1) agreement with the Court’s self-described originalists, Justices Thomas and Gorsuch, and disagreement with the Court’s greatest pragmatist, Justice Breyer, demonstrated through voting or cross-referencing; 2) oral argument questioning focused on originalist concerns, such as textualism and historical meaning, and avoidance of pragmatic concerns, like practical consequences. A quantitative analysis of Kavanaugh’s voting patterns, cross-referencing behavior, and oral argument questioning suggests that Kavanaugh’s claim to be an originalist is quite dubious.

Voting Alliances – different shades of conservatism

Looking first at his voting agreement with his different methodological brethren, Figure 1, below, depicts the number of times Kavanaugh voted with each justice, in all cases decided so far, and specifically in the most relevant cases for originalism, constitutional and statutory interpretation cases.

Bar chart showing number of times Kavanaugh voted with each other justice. Details described in the text. — *Justice Kavanaugh’s votes with other Justices in the 2018 Term (so far)*

Overall, Kavanaugh voted more times with the non-originalist conservatives, Chief Justice Roberts and Justice Alito, than with either Thomas or Gorsuch. Kavanaugh also voted more often with Breyer than Gorsuch. For constitutional and statutory interpretation cases, where one might predict his originalist tendencies would be strongest, Kavanaugh voted more times with Alito and Roberts than Gorsuch or Thomas, and more times with Breyer than Gorsuch. In this way, Kavanaugh has shown a greater tendency to vote with the Court’s non-originalist conservatives and moderate liberal pragmatist than with the originalists, even for cases ripe for originalist analysis.

Cross-Referencing – everyone but the originalist(s)

Cross-referencing in oral argument is generally a sign of agreement between justices. Figure 2, below, illustrates the number of cross-referencing instances per justice in a selection of cases this term (N=21), overall and for constitutional cases.

Bar chart showing number of times Kavanaugh cross-referenced each other justice. Details described in the text. — *Justice Kavanaugh’s cross-references to the other Justices in oral argument in the 2018 Term*

Overall, Kavanaugh referenced Justices Kagan and Breyer many more times than he referenced any other justice, and notably more than three times as often as he referenced Gorsuch. Kavanaugh also referenced the pragmatist conservative Alito and the formalist liberal Justice Ginsburg more than Gorsuch. For constitutional cases, Kavanaugh referenced Breyer, Kagan, and Alito more than Gorsuch. In this way, Kavanaugh’s cross-referencing behavior signaled more support for the Court’s pragmatists and two liberal justices than for the originalism inclined Justice Gorsuch (cross-references to Justice Thomas are rare because he almost never speaks in oral argument).

Oral Argument Questioning – some content analysis

The types of questions Kavanaugh asked during oral arguments offers another means of examining his commitment to originalism. Reviewing the oral argument transcripts for the same selection of cases as the cross-referencing analysis, I identified and coded each question Kavanaugh asked for the mode of constitutional interpretation it reflected i.e. Textualism/Original Meaning, Structuralism, History/Precedent, Pragmatism, Miscellaneous. Figure 3, below, illustrates the number of questions Kavanaugh asked per mode of constitutional analysis as a percentage of overall questions (N=167).

Pie chart. Details described in text. — *Justice Kavanaugh’s questions and comments in oral argument in the 2018 Term, coded by mode of constitutional analysis*

Kavanaugh asked significantly more pragmatist questions than any other question type, including textualist/original meaning questions. He also asked slightly more history/precedent questions than textualist/original meaning questions. It could be argued that his history/precedent questions are an expression of his originalism. In fact, in Gamble v. United States, Kavanaugh describes stare descisis as “part of the original understanding,” in sharp contrast to Thomas. However, it is telling that Kavanaugh often inquired about precedent as a practical concern for reliance on historical practice. In Carpenter v. Murphy, for example, Kavanaugh stated, “stability is a critical value in judicial decision-making, and [in overturning] we would be departing from that and creating a great deal of turmoil.” Therefore, even if his history/precedent questions are consistent with originalism, the results still show Kavanaugh’s strong concern with practical consequences, which remains a departure from originalism.

The next two figures take a comparative look at Kavanaugh’s questioning, showing the number of questions asked by Gorsuch (Figure 4) and Kavanaugh (Figure 5) by mode of interpretation specifically in constitutional cases.

Like Kavanaugh, Gorsuch asked significantly more pragmatist questions than textualist/original meaning questions overall, suggesting there is no such thing as pure originalism. However, Gorsuch was significantly less likely to ask pragmatist questions and more likely to ask textualist/original meaning questions than Kavanaugh. Because Kavanaugh’s questioning remains more focused on pragmatic than originalist concerns, to a greater extent than Gorsuch’s, Kavanaugh’s questioning demonstrates his deviation from originalism and toward pragmatism.

Qualitative Analysis – who to join in opinions?

Kavanaugh’s behavior in two constitutional cases provides another view of his originalist expression or lack thereof. While the Court in Timbs v. Indiana held unanimously that the Excessive Fines Clause was incorporated against the states, Kavanaugh chose not to join Thomas and Gorsuch in either of their concurrences, which both argued on originalist grounds that the appropriate vehicle for incorporation was the Privileges or Immunities Clause. This presented Kavanaugh with a low risk opportunity to support the Gorsuch/Thomas brand of originalism: he didn’t have to join in dissent or write alone in concurrence, all he had to do was join Gorsuch or Thomas in recognizing their supposedly originalist interpretation of incorporation. Yet Kavanaugh declined.

Similarly, in Garza v. Idaho, Kavanaugh declined to join the Court’s two self-identified originalists in an issue pertaining to original meaning. At issue in Garza was whether the presumption of prejudice in certain Sixth Amendment contexts applies when the defendant signs an appeal waiver. Thomas and Gorsuch, in dissent, challenged longstanding precedent and re-examined the original meaning of the Sixth Amendment. The fact that Kavanaugh declined to join them is not as surprising as in Timbs. During oral argument, Kavanaugh focused on pragmatic concerns, including whether there was any practical problem that would justify precluding the presumption. In this way, both Timbs and Garza show Kavanaugh’s willingness throughout his first term to set aside assertions over original public meaning in favor of pragmatism.

Looking Ahead

The evidence from Kavanaugh’s first term to date suggests he is not an originalist as that brand of judicial philosophy is commonly understood. Possibly, Kavanaugh’s latent originalism has been overshadowed by strategy and diplomacy in his rookie year; he may yet become more comfortable touting his originalism when he graduates from his freshman role. An alternative hypothesis is that Kavanaugh’s embrace of originalism was a political tactic to secure his nomination. Whatever his motivations may have been, the early cases suggest Kavanaugh is unlikely to fulfill his confirmation hearing promise and his tendencies toward pragmatism will continue.

Guest post by Maveric Searle

This week we have a guest blogger, a Northwestern Pritzker law student, Maveric Searle, who developed a new measure of judicial ideology for a final paper in Tonja Jacobi’s Supreme Court cases seminar. He also applied it to the current Term, based on the limited decisions released so far, to answer the very pressing question of who we can expect to be the new median of the Court. Maveric has turned his paper into a ScotusOA post, providing the first take on the new ideological spectrum of the Roberts Court.

A new median

The retirement of Justice Anthony Kennedy in 2018 represented a potentially pivotal moment in the modern history of the Supreme Court. Kennedy had long held the spot of the median justice on the Court. The median justice, whose vote is often the deciding vote in contentious cases, is typically thought of as being the most powerful or the most influential justice. Kennedy’s retirement represented not only the appointment of a new justice, but also the opportunity for a new justice to fill the position at the Court’s center. Chief Justice John Roberts is commonly seen as the favorite to become the new median justice. This post analyzes the Court’s early rulings from the October 2018 Term to see if Roberts has lived up to those expectations, or if the Court’s newest member, Justice Kavanaugh, could be its new median.

Conceiving the Median: Agreeability and Majoritarianism

One simple way to identify the median justice is to look at who has voted in the majority most often this Term. The median justice should have a high rate of voting in the majority because historically the median is in the majority in closely decided cases more often than any other justice.

The numbers above suggest that the median is likely Kavanaugh or Roberts, each of whom has been in the majority at a higher rate than their colleagues. Kavanaugh has a higher ranking than Roberts, but importantly Kavanaugh did not participate in several cases this term, and a dissenting vote in any one of those cases would have moved him below Roberts.

Another straightforward approach is to look at how often each Justice agreed with the other Justices. The median justice should have a high agreement rate because, by virtue of being centrist, he or she will generally agree with colleagues on either end of the spectrum more often than will the opposite extreme justices.

Once again, Kavanaugh and Roberts are duking it out for top spot, tied for who looks most likely to be the median in terms of average agreeability rate. Given the similarities in both their rates of voting in the majority and their average agreeability rating, a more sophisticated analysis is needed to determine which of the two is the new median justice.

Ranking the Justices on a Left-Right Ideological Spectrum

It is now well accepted who is a liberal justice and who is a conservative justice, not only because the justices are nominated and confirmed by increasingly polarized political actors, but because each of the currently serving Justices has prior affiliations with either the Federalist Society or the American Constitution Society. The key question is: what are the differences among the liberals and among the conservatives? And in particular, with a new five justice conservative majority, who will be the most moderate conservative justice, and thus the median of the Court?

To identify the median justice by ideology along a left-right continuum, the next measure examines how often each justice votes with the conservative justices as compared to the liberal justices. Justices are classified as liberal or conservative based on the political party of the president who appointed them. It then counts how many liberal and conservative justices each justice agreed with in each case (using the percentage of the ideological bloc that the justice agreed with, to account for the fact that there are more conservative than liberal justices).

In a unanimous decision, every justice would agree with 100% of both the conservative and liberal justices. In a 5-4 ideologically ordered decision, a conservative justice would agree with 100% of the conservative justices and 0% of the liberal justices. In a case like Garza v. Idaho—a 6-3 decision with Thomas, Alito, and Gorsuch dissenting—each justice in the majority agreed with 40% of the conservatives (Roberts and Kavanaugh) and 100% of the liberals. Each justice in the minority agreed with 60% of the conservatives and 0% of the liberals. Justices are given weight for agreeing with themselves to ensure that decisions with a lone dissenter have an impact on the dissenting justice’s final score.

These percentages are then turned into an aggregated 0–1 “liberal score” and an aggregated 0–1 “conservative score,” with e.g. 60% agreement being a score of .6. A net ideology score is then determined by subtracting the liberal score from the conservative score for each justice. Using this method, unanimous decisions do not impact the final score because they result in an equal increase to both the aggregated liberal and the aggregated conservative score.

Finally, the net ideology scores are standardized by taking the final score and dividing it by the number of non-unanimous cases that each justice participated in. This yields a number between -1 and 1 for each justice, who can now be ranked them from left to right.

The resulting ranking lines up well with common intuitions, with the possible exception of Justices Gorsuch and Alito: Gorsuch lying slightly to the left of Alito may surprise some, particularly given Gorsuch’s emphasis on originalism and Alito’s rejection of that methodological approach most commonly associated with conservatism.

However, the scores may be capturing some nuance that would be missed by overly focusing on the two Justices’ rhetorical approaches, as there are some areas where Gorsuch has shown himself to be more liberal than Alito. For instance, in Biestek v. Berryhill, Gorsuch wrote a dissent that was joined by Justice Ginsburg. This dissent likely represents the two formalists agreeing based on factors that were methodological rather than ideological. Given the limited data available from the cases decided so far this Term, an unusual case like Biestek had a significant impact on Gorsuch’s final score: this decision alone moves Gorsuch from slightly to the right of Alito to slightly to the left. But Biestek may be quite representative: when it comes to matters of fairness—a key concept in the standard “underdog”–sympathetic model of liberalism—there is a strong argument to be made that Gorsuch lies to the left of Alito in some areas.

Unlike the statistics on justice agreeability and rate of voting in majority, the standardized ideology scores of Roberts and Kavanaugh demonstrate a significant difference between the two Justices. Although Kavanaugh has been in the majority at the highest rate, and he is tied with Roberts in terms of average agreeability, Roberts’ ideology score puts him distinctly to the left of Kavanaugh.

While it is still early in the post-Kennedy era of the Court, and a number of the Court’s most controversial cases have yet to be decided this term, this method suggests that Chief Justice Roberts will in fact be the Justice to look to as the Court’s new median. The early numbers suggest that we really are seeing “the Roberts Court.”

Category: Guest post

Is Justice Kavanaugh an Originalist?