The “Swing Voter” Revisited: Justice Anthony Kennedy and the First Amendment Right of Free Speech

Abstract

The prevailing definition of a “swing voter” on the Supreme Court, set out in a landmark 1990 article in The Journal of Politics and unchallenged ever since, establishes an unreasonably high standard for determining whether a Justice truly fits that critical role. This article critiques existing methods of identifying swing voting and advances a revised methodology, which is then applied to Justice Anthony Kennedy’s decisionmaking patterns on the current Court. In the case of free speech decisions in particular, we find that Kennedy epitomizes an alternative form of the “swing voter,” veering off from his more natural bloc in that important subset of cases.

Does the Median Justice Control the Content of Supreme Court Opinions?

“…While it is relatively easy to code and compare case outcomes (i.e., who won and who lost), it is a different matter altogether to develop more substantive measures that place the "rule" embedded in a judicial opinion in policy space. In light of this difficulty, one common way of thinking about the "law" of a Supreme Court decision -both in academic literature and popular perception -rests on the intuition that the Court's "center" or median justice should be the "swing vote" that can control the Court's opinions (Schmidt and Yalof 2004). For example, until Sandra Day O'Connor's retirement, it was commonplace to identify her preferences with the content of Supreme Court policy.…”

The Swing Justice

“…This measurement strategy holds important implications for our argument. Scholars have often asked whether a particular justice, such as Justice Reed (Anonymous 1949), Justice Powell (Blasecki 1990), Justice Kennedy (Schmidt and Yalof 2004), or Justice O'Connor (Rosen 2001) was the pivotal justice on the Court. Others have focused on the ideological position of each justice during each term, suggesting that the justice in the ideological middle is the swing vote (Grofman and Brazill 2002;Martin and Quinn 2002).…”