Let’s Get Partisan: The Importance of Appointing Party in the Justices’ Votes and More

In Judges, Supreme Court, US Courts of Appeal by Adam FeldmanLeave a Comment

                To what extent are judges politically motivated in their decisions? Life tenure was part of the Constitutional structure designed to insulate federal judges from such pressures.  Nonetheless, the party of the appointing president dictates much usable information on how judges at all levels of the federal judiciary vote.  The party of the appointing president used to be a common predictor for federal judicial votes before more advanced metrics were created to measure this element of judging. 

This is the second post in a series about Supreme Court monitoring of federal courts of appeals decisions. This post examines how political party is a useful proxy in assessing the ideology of current Supreme Court Justices and looks at the practical relationship between appointing political party and the justices’ votes. It also presents one of the first comparative pictures of new Justice Amy Coney Barrett’s voting so far on the Supreme Court.

The data from this post are based on the justices’ votes in cases decided below by federal courts of appeals panels.  The courts of appeals judges are all coded as democratic or republican depending on the party of their appointing president.  The first figure looks at the justices votes so far in the 2020 Supreme Court Term. The metric shown is the percentage and count of the justices’ votes that disagree with the lower court judges’ votes. This means a justice voted to reverse or vacate in a case where the lower court judge was in the majority or the justice voted to affirm a decision when the lower court judge was in dissent.

Based on her votes so far this term, Justice Coney Barrett disagreed with votes by lower court democratic-appointed judges more frequently than any other justice at 94.44%.[1]She actually aligned with Justices Thomas and Gorsuch in all of her votes this term. The reason for her greater disagreement with democratic-appointed judges is due to the cases she did not render a … Continue reading She disagreed with lower court republican-appointed decisions in a similar frequency to those of Justices Roberts and Gorsuch. Each of the six more conservative justices disagreed with lower court democratic-appointed judges more frequently than with republican-appointed judges. The conservative judges’ disagreement frequencies with democratic-appointed judges in descending were Justice Barrett, then Kavanaugh, Roberts and Gorsuch (tied), Thomas, and then Alito. All disagreed with democratic-nominated judges more than 70% of the time.

The three more liberal justices were more balanced in their disagreement with republican and democratic related judges. Justice Kagan disagreed equally with democratic and republican nominated justices at just under 89% each. Justices Breyer and Sotomayor each disagreed with republican nominated judges a bit more than with democratic nominated judges with Sotomayor’s difference in disagreement with republican and democratic nominated judges a bit greater than Justice Breyer’s.

When we look from the 2018 term through the present, Justice Coney Barrett’s votes that disagree with those from democratic-appointed court of appeals judges are even more pronounced compared to those from her colleagues on the Court.

Across these two plus years of data the justices aside from Coney Barrett appear more balanced in their disagreement with republican and democratic appointed judges.  All more conservative justices disagreed with democratic-appointed judges more than with republican-appointed judges and the opposite is true for the more liberal justices. Justice Kavanaugh is the most balanced justice with only a fraction of a percentage point difference in his disagreement with republican and democratic appointed judges. The maximum amount of disagreement was between Justice Barrett and democratic-appointed judges at 94.44% and the minimum amount of disagreement was between Justice Thomas and republican-appointed judges at just over 48%.

Another way to look at this data is from the perspective of majority author for the Supreme Court. The next figure tracks the disagreement only between the majority authors on the Supreme Court and the lower court judges’ votes.

The majority author metrics do not show the same correlation with partisanship as the votes do. Here Justice Thomas’ opinions have a wide level of difference in disagreement with the votes of republican and democratic-nominated judges. Justice Ginsburg has a high level of disparity in the other direction. Both are expected findings. Many of the other justices are more balanced.  Justices Alito’s opinions actually disagreed with republican-nominated judges votes more often than with democratic nominated judges’ votes. Justices Sotomayor, Ginsburg, and Kagan’s opinions each disagreed with democratic-nominated judges’ votes more than they did with republican nominated judges’ votes.

Peering at the micro level, the following figure shows which justices’ votes consistently agreed or disagreed with lower court judges’ votes in at least four instances.

We can see partisan relationships in many judge/justice relationships at this level. Justice Thomas for instance agreed with two republican-nominated judges (compared to one democratic-nominated justice) and disagreed only with three democratic-nominated judges. In the opposite direction, Justice Sotomayor only disagreed with republican-nominated judges.  Justice Alito was the only other justice to disagree with only judges nominated by presidents of one party and not surprisingly he only disagreed with only democratic nominated judges (like Justice Thomas he also only disagreed with judges on the Ninth Circuit this often).

We see in these data that party of appointing president is telling about judges and the decisions they make. This is especially apparent when we look at dual levels of judging. The insights on Justice Barrett are illuminating as they are some of the first data points we have of her as a Supreme Court Justice that convey how she might vote moving forward. We see through this lens that democratic and republican nominated judges often disagree but not in every instance. We also see that judges and justices that are more ideologically moderate disagree less frequently than their more ideological counterparts. Finally, we see relationships between individual judges in the federal judicial hierarchy are meaningful as the justices voted in multiple cases with the same judges and often agreed or disagreed with them repeatedly.


Adam works as an empirical legal consultant. You can reach him at afeldman@thejurislab.com. You can find him on Twitter @AdamSFeldman

Click here for data from the post

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References
1She actually aligned with Justices Thomas and Gorsuch in all of her votes this term. The reason for her greater disagreement with democratic-appointed judges is due to the cases she did not render a vote in.

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