Mavericks, moderates, or drifters? Supreme Court voting alignments, 1838-2009.

• Author: Chabot, Christine Kexel

1. Introduction

   "I could carve out of a banana a Judge with more backbone than that!"-A disappointed Theodore Roosevelt, after hearing of Justice Holmes's vote in Northern Securities Co. v. United States (1)

   Can the president confidently predict the ideology of a supreme Court appointee? Voters seem to think so. In 2008, polls found that the majority of voters considered appointments to the Court an "important factor" in determining their votes. (2) More than one in six voters considered it the most important factor, ahead of even war and the economy. (3) The desire to control the nomination process is not a recent phenomenon. More than two-thirds of registered voters listed supreme Court appointments as an important factor in deciding their vote in the 2000 presidential election, and the supreme Court has been a plank on presidential platforms since 1896. (4)

   Voters' desire to influence the Court stands in tension with the notion that the Court is a counter-majoritarian institution. This view of the Court has fueled the legal academy's "obsessive" discourse (5) on the counter-majoritarian difficulty. (6) Still, political scientists and a number of legal scholars have questioned whether the Court is, in fact, counter-majoritarian. (7) Though Justices themselves are not elected, elected officials appoint them. Thus, at the time of appointment, Justices should reflect dominant political views. (8) Most arguments for a majoritarian Court depend on the president's and Senate's ability to appoint Justices whose decisions reflect their views. (9)

   The president's ability to appoint ideologically compatible Justices is a critical issue for both voters and Supreme Court scholars. Is there any reason to think presidents actually possess this power? If they do, one would expect Justices appointed by the same president, and perhaps by presidents of the same party, to vote together at a higher rate. Likewise, if appointments bring the Court in line with majoritarian views, then at least in times of unified government one would expect Justices to align with appointees of the same president or party more often than not. (10)

   But the results of presidents' Supreme Court appointments are mixed. Consider the different experiences of George H.W. Bush and his son. Both of George W. Bush's appointees, John Roberts and Samuel Alito, have similar voting records, which are thought to align with executive preferences. The first Bush Administration did not fare as well. While Justice Clarence Thomas votes with Republican appointees at a high rate, David souter voted with Democratic appointees at just as high a rate. (11) It is no surprise that appointees sometimes will deviate from executive preferences, but how often are such disappointments likely to occur? Was Souter's appointment a product of divided government, or was it part of a larger pattern of Justices who depart from executive preferences no matter who controls the senate?

   Unfortunately, the data available to previous researchers have been too limited to answer this question. Leading Supreme Court scholars have been "especially handicapped" in their ability "to offer information on voting behavior prior to the Vinson Court era." (12) Indeed the "greatest single resource of data on the Court,"13 Harold J. Spaeth's U.S. Supreme Court Database, offers Justice-centered voting records dating back to only 1946.14 With just twenty-seven Supreme Court appointments since this time, the sample of Justices whose voting records are available to empirical legal scholars is too small to draw statistically confident conclusions about the president's probability of failure. (15) Scholars have begun making inroads by looking as far back as the 1930s. (16) Still, existing studies leave almost twice as many appointments unexamined as examined. They omit several appointments made during earlier periods of divided government.

   Our Article addresses this shortcoming. We introduce a new data set containing the Supreme Court voting alignments for every written opinion issued from 1838 through 1949. This data set contains 18,812 cases and represents an approximate three-fold increase in quantitative voting data available to Supreme Court scholars. We build on past historical studies17 and make possible the first comprehensive study of precise voting coalitions for early Supreme Court cases. (18)

   Our new data allow us to address previously unanswerable questions about the president's power to appoint Justices with the Senate's "Advice and Consent." (19) A powerful Senate could either keep a nominee off the Court or drive the president to nominate a more moderate Justice than he would otherwise prefer. Historical accounts of failed nominees make clear that we cover a contentious period in which divided government often led to a nominee's defeat. (20) We know far less, however, about the Justices who made it on the Court. Did the confirmation process make it more difficult for a president to appoint Justices who shared his ideology?

   The literature on Supreme Court appointees is rife with competing anecdotes of executive success rates. To be clear, our discussion of satisfaction or disappointment in overall voting records focuses on a single measure, ideology. It does not account for merit or other factors relevant to evaluating a Justice. But assessments of ideology alone provoke considerable differences of opinion. Some scholars highlight presidents disappointed with their appointees' treatment of key executive policies, (21) and luminaries such as John Hart Ely have wondered whether disappointment should be considered the "rule rather [than] the exception." (22) Others claim that these accounts are "more myth than reality" (23) or find it difficult to set a clear benchmark for measuring executive disappointment.24 Still others blame disappointment on the constraining effect of an opposing-party Senate25 or warn against omitting the Senate when crafting proxies for an appointee's ideology. (26)

   Our extended time period allows us to compute clear benchmarks and conduct the first quantitative examination of presidential success rates over a 170-year period. (27) We proceed as follows: In Part II, we describe our data collection process and methodology for measuring voting alignments. We also show that our measures of agreement based on count data reflect the information contained in another leading measure of judicial ideology, Martin-Quinn scores.

   In Part III, we present our general results. Aggregate voting records show that Justices generally agree with appointees of the same party about as often as they agree with appointees of the other party. Most surprising, however, are the voting records of individual Justices. They show that presidents fare far better with certain appointees than others, and that they often have appointed ideologically incompatible Justices. Just under half of the Justices we studied sided with appointees of the other party most of the time.

   We find no evidence that this outcome can be attributed solely to divided government, and most of our results remain stable over time. In very recent years, though, the Court has become more polarized as the magnitude of Justices' agreement with one side or the other has increased. Thus, while the stakes in a given appointment are higher than ever, history gives no assurance that a Justice will side with the party of his or her appointing president.

   In Part IV, we apply these individual voting records to three lines of historical inquiry. First, we assess prominent examples of disappointment, including Justice Salmon Chase in 1870 and Justice Oliver Wendell Holmes in 1904. As Felix Frankfurter recounted, these Justices let down Presidents Abraham Lincoln and Theodore Roosevelt on key executive policies:

   Chief Justice Chase declared unconstitutional the Legal Tender Act of the President who appointed him and of the Administration of which he was a member. So also Mr. Justice Holmes decided against the Government in the Northern Securities case, Roosevelt's pet litigation, although the latter thought it his duty to put on the Supreme Bench only men who would sustain "My Policies." (28) Historical accounts differ as to whether Holmes let down Roosevelt in just the Northern Securities case or with his voting record as a whole. (29) We also do not know how his complete voting record compares to that of Justice William Day, who also was thought to have disappointed Roosevelt. overall voting records allow us to identify whether these and other executive disappointments hinged on a few key cases or on overall voting records.

   Our second historical inquiry is a comprehensive examination of individual voting records for Justices nominated during times of divided government in the nineteenth century. Again, our data offer the first opportunity to assess Justices' overall voting records during this important but previously inaccessible time period. Like our general findings, these records fail to show that divided government led to Justices with significantly more moderate voting records.

   Our last historical inquiry is a preliminary measure of whether past voting patterns are consistent with ideological drift. This phenomenon, in which Justices' ideologies change over time, has been documented in contemporary data. (30) Our records show that Justices' historical voting patterns also are consistent with ideological drift.

   In Part V, we conclude that a large percentage of Justices have disappointed presidents with their overall voting records. This outcome has continued to occur at a high and stable frequency since 1838. We find no correlation between an opposing-party Senate and the rate of appointees who vote across party lines. Indeed, many prominent historical examples of failed appointments occurred when the Senate and president were of the same party. These mavericks are not outliers. Instead, they are part of a larger pattern of...