Why are scholars still using these scores as “ideology measures” for SCOTUS? The 2020 term just ended, and here is what the scores appear to say (see image below). They say that every Trump appointee, along with Roberts, are a set of justices who are less directional than the justices appointed by New Democrats. They also suggest that Clarence Thomas is the most conservative justice this year, but that he is not as driven as Sotomayor, who is the most orthodox. And that Breyer is more liberal than Kagan.
Why is this misinformation happening? It’s pretty simple: Martin-Quinn scores throw out all of those unanimous decisions that occurred this year. That’s 43% of the cases. The truth is that the most conservative justice this year was Sam Alito, not Thomas. Along with registering pedantic and pouting dissents, Alito was the least likely justice to agree with any of the Democrats. His agreement rating was in the 50s for each and every one of them (see picture below).
A better measure of the ideology of the justices are the career liberal ratings in the Supreme Court Data Set. They try to define what is liberal voting at the outset rather than blindly throwing out a bunch of votes. And whatever imperfections this has in discreet cases becomes less so once large samples emerge. And the nice thing about these scores is that they seem to conform to what we otherwise perceive: that Kavanaugh and Roberts are, indeed, “institutional conservatives” not unlike Kennedy and O’Connor in directional propensity, while the orthodox conservatives are people like Alito, Thomas, Scalia and Rehnquist. The scores are at least anchored in something criterial, as I argue in the module below (very bottom).
And contrary to what you may be hearing from sources like this, the truth is that the current Supreme Court is not an orthodox Court (at least not yet). If you take away Sotomayor, Alito and Thomas, the rest of the Court is quite substantially in agreement on the bulk of decisions made in 2020. Kagan and Breyer each agree with both Roberts and Kavanaugh greater than 70% of the time. And the Court decided 60% of the total cases by at least an 8-1 vote.
So if you are looking for a better social science explanation of what this means, you may want to take your ideology goggles off and do something more nuanced. What is happening is exactly what we would expect in a Pritchett universe defined by collegial rather than partisan strictures. Judges from opposite parties are simply finding efficient policy points at which to dispose of high stakes cases with minimized controversy (judicial minimalism). The Court’s handling of Obamacare is a case in point. And this is periodically causing orthodox justices to express consternation — Alito and Thomas most poignantly.
In other words, rather than being outnumbered by surrogates of an orange-haired monster, the Court remains the Court in spite of the social insanity that otherwise maligns the policy organs of government and the media platforms. Will this continue next year? People like me don’t root: we just watch. And whether one gets this descriptive-only approach from Ludwig Wittgenstein or Doris Day (Que Sera Sera), the point is still the same: Martin-Quinn scores are an inaccurate measure for “ideology” that create a good deal of misinformation.
