Super medians.

• Author: Epstein, Lee
• Position: Spaecial characteristics of judges

INTRODUCTION I. THE SPECIAL ROLE OF THE MEDIAN JUSTICE II. THE ATTRIBUTES OF SUPER MEDIANS A. The Criteria for Super Medians B. The Empirical Indicators of Median Power 1. Membership in the majority coalition 2. Influence on the Court's decisions III. THE IDENTITIES OF SUPER MEDIANS IV. THE CAUSES OF STRONG AND WEAK MEDIANS: GAPS AND OVERLAPS A. The Gap B. The Overlap V. THE CONSEQUENCES OF STRONG AND WEAK MEDIANS A. Appointing Justices B. Litigating Before the Court CONCLUSION INDEX OF FIGURES AND TABLES Figure 1. Preference Configurations for the 1969 and 2006 Terms of the Supreme Court Figure 2. Ideal Point Estimates for Justices Serving During the 1991 and 2001 Terms of the Supreme Court Figure 3. Medians on the U.S. Supreme Court, 1953-2006 Terms Figure 4. Voting with the Majority, 1953-2006 Terms Figure 5. Voting with the Majority in One-Vote Margin Cases, 1953-2006 Terms Figure 6. Concurring in the Judgment, 1953-2006 Terms I Figure 7. Majority Participation in Important Cases, 1953-2006 Terms Figure 8. Preference Configurations for the 1965, 2004, and 2006 Terms of the Supreme Court Figure 9. The Gap, 1953-2006 Terms Figure 10. Predicted Percentages as the Gap (the Distance from the Median) Increases from Very Narrow to Very Wide Figure 11. Preference Configurations for the 1991 and 2001 Terms of the Supreme Court Figure 12. Hypothetical Preference Distributions for the Three Center Justices Figure 13. The Overlap, 1953-2006 Terms Figure 14. Predicted Percentages as the Overlap Increases from Very Narrow to Very Wide Figure 15. Appointment Scenarios Under (1) a Democratic President and Senate and a Departure to the Left of Justice Kennedy and (2) a Republican President and Senate and a Departure to the Right of Justice Kennedy INTRODUCTION

The cheese stands alone The cheese stands alone Hi-ho, the derry-o The cheese stands alone (1) Justices Hugo L. Black and Anthony M. Kennedy would seem to have almost nothing in common. Justice Black was appointed by one of the most liberal Presidents of the twentieth century, Franklin D. Roosevelt; Justice Kennedy, by one of the most conservative, Ronald Reagan. (2) Before he ascended to the bench, Black was a politician, a U.S. senator no less; (3) Kennedy, a federal judge for thirteen years. (4) Justice Black was a self-proclaimed textualist; (5) Justice Kennedy, an oft-described idealist. (6) But they do share at least one distinction: at one time or another, both served as the Court's swing, pivotal, or, in the parlance of social science, the "median" Justice. (7) During the 1965 Term, four Justices were to Justice Black's ideological left and four to his right. (8) Roughly forty years later, Justice Kennedy finds himself in much the same position. (9)

Characterized in this way, it would seem that a single Justice serves as the median each Term, and that these swings wield considerable power regardless of their ideological or jurisprudential leanings. The first is most certainly true. As long as the Court consists of an odd number of members, (l0) there will be an identifiable median Justice. (11)

The second point also holds, but more precariously. While in theory the median Justice should be quite powerful, (12) in practice some are far stronger than others. In fact, just as there are "super precedents" (13) and "super statutes" (14)--those that are weightier or more entrenched than others--there are super medians--Justices so powerful that they are able to exercise significant control over the outcome and content of the Court's decisions.

Justice Kennedy was one; Justice Black was not. Over the course of the 2006 Term, Kennedy helped form majorities in all but two cases; (15) he was a member of the winning coalition in each and every case decided by a five-to-four vote. (16) Justice Black, on the other hand, voted with the majority in only half of the closely divided decisions of the 1965 Term. (17) Even more telling, Justice Black found himself in dissent in some of the Term's most celebrated decisions, including Sheppard v. Maxwell (18) and Harper v. Virginia Board of Elections. (19) In contrast, Justice Kennedy joined or wrote the opinion of the Court in virtually every high-profile dispute of the 2006 Term, (20) whether over employment discrimination, (21) abortion, (22) or environmental protection. (23)

Why was Justice Black so much weaker than Justice Kennedy? More generally, why is it that some medians, like some precedents and some statutes, are so super in stature that they are able to extract considerable deference and exert inordinate influence on the Court? The answer, we argue, centers less on the Justices in the middle than on those surrounding them. When median Justices are ideologically remote from their nearest colleagues--as Justice Kennedy was from Justice David Souter (on his left) and Justice Samuel Alito (on his right) in 2006 (24)--they will emerge as super medians. They will find themselves on the winning side of cases, breaking ties throughout the Term, and authoring opinions in key cases. But when medians are ideologically proximate to their closest colleagues--the situation in which Justice Black found himself in 1965 (25)--they will be far less dominant. Consequently, two conditions precipitate truly powerful swings: (1) the ideological distance between medians and the Justices on either side of them-or what we call the "gap"; and (2) the degree to which the preferences of medians and the Justices closest to them converge--the "overlap." As the gap grows and the overlap decreases, super medians emerge. On the other hand, when medians and those Justices ideologically closest to them are indistinct, the median's clout diminishes considerably.

In short, our claim is that power on the Court does not arise merely by virtue of occupying the swing position; it is rather a function of the relative proximity between the swing Justice and those nearest to him or her. To paraphrase the classic nursery rhyme, when the cheese stands alone, he really does control the dell. (26)

We develop these ideas in five steps. After a brief discussion of the special characteristics of median Justices in Part II, we turn to super medians. Part III delineates the criteria required to attain that status, and Part IV identifies those Justices who have met them. So that there will be no mystery about it, our analysis indicates that Justice Kennedy is only the most recent example of a super median. In previous Terms, five others were nearly as dominant: Justices Tom Clark, Arthur Goldberg, Sandra Day O'Connor, Lewis Powell, and Byron White.

After unmasking the super medians, in Part V we explore theoretically and empirically the two conditions that precipitate them: the gap and the overlap. Our theoretical analysis invokes the logic of simple spatial models--tools used to gain insight into a wide array of legal phenomenon--to explain why gaps and overlaps are crucial to the creation of dominant medians. Employing sophisticated measures of the Justices' ideology and novel indicators of median power, our empirical analysis provides affirmation of the theoretical account. We find, for example, that as the ideological distance (that is, the gap) widens between swing Justices and those to their right and left, they are far more likely to dominate Court decisions than are medians who are quite proximate to their nearest colleagues.

These findings are interesting in their own right. They suggest that medians, like laws and precedents, come in different flavors. But the implications of our results may be even more intriguing. In Part VI we develop two. The first centers on the appointment of Justices and challenges an entrenched piece of conventional wisdom: that only nominees who "move the median" will influence the direction and content of the Court's decisions. In direct juxtaposition, our account suggests that the influence of strong swings can be weakened (or strengthened) even when they cannot be replaced or moved. So, for example, those interested in diluting the power of Justice Kennedy may be well advised to support Supreme Court candidates ideologically proximate to him rather than candidates who are ideologically extreme. To this end, we identify plausible nominees for future Republican and Democratic administrations, depending on which of the current Justices depart. The second implication considers the propensity of attorneys litigating before the Court or filing briefs as amicus curiae to focus on the median Justice. What we demonstrate, again contrary to the prevailing wisdom, is that attorneys may be pursuing this strategy to their own detriment. In fact, under certain circumstances, litigators can increase their odds of success by attending to the entire center of the Court, rather than lavishing all their attention on its median.

1. THE SPECIAL ROLE OF THE MEDIAN JUSTICE

   Once a term bandied about almost exclusively by social scientists or statisticians, the "median Justice" has now entered the legal and even public lexicon. (27) In an interview conducted shortly before the Senate confirmed Samuel Alito, Dean Erwin Chemerinsky predicted that "Anthony Kennedy will be the new median justice," and that he will move the Court "significantly to the right." (28) A little over a year later, Professor Steven Calabresi confirmed that "Kennedy is very much the median justice now, as Justice O'Connor was, and he is to her right." (29)

   In these and many other statements we have found, (30) the speakers invoke the term "median" to signify power on a nine-member U.S. Supreme Court. As Dean Chemerinsky put it, "[i]n any body with odd numbers, you're going to be able to identify someone who is the median vote. As a result, that person carries some weight." (31) He is correct on both counts.

   Why odd numbers give rise to identifiable medians traces directly to the definition of a median on the Court: "the Justice in the middle of a distribution of Justices...