Since it’s election season it seems like as good of a time as any to gauge the Justices’ support for the government.  The Justices and especially Justice Ginsburg have been by no means silent about the current presidential candidates.  Furthermore, the Supreme Court is more relevant in this election than possibly in any prior presidential election.  The issue of the Court’s relevance has brought out disparate pictures of the next Justice from the major parties’ candidates.  Hillary Clinton’s preferred nominee, whether it be Garland or someone else, is characterized as a liberal that would among other things, thwart the Citizen’s United decision.  Donald Trump on the other hand, with his twenty potential nominees has signaled that he is looking outside the traditional D.C. establishment for potential Justices that strongly support the Second Amendment.  With the shape of the Court for years very possibly in the next President’s hands, an interesting question arises as to how supportive the Justices are of the federal government’s agenda.

One obvious perspective on this question is that conservative Justices will support a conservative agenda and vice-verse with liberal Justices.  There are scholarly results suggesting the accuracy of this premise.  I tackle the question of the Court’s support for the government’s agenda a bit differently.  In this post I look at the Justices’ relative support for the federal government three ways.  I look at the Justices’ cumulative support for the government as a party when the (1) party is either the “United States” or (2) an executive agency / the head of an executive agency – all of which are represented by the United States Solicitor General.   I then look at the Justices’ support separately when the United States is a merits party and when an executive agency or an agency head is the merits party.  I examine all votes in these such cases since the 2010 Term when all of the current Justices (minus Scalia) were on the Court or a sample of 134 total cases.

To begin I examine support for US agencies and agency heads.  The chart below shows the Justices’ relative support for US agencies with their votes (the measure is a percentage basis).

Only Justice Sotomayor voted in support of US agency positions more than 50% of the time and just barely.  Looking at the Justices relative support for US agencies under President Obama, however, the support seems indicative of ideological difference in support levels.  Four of the top five most supportive Justices are the more liberal Justices on the Court and the four least supportive Justices are the more conservative Justices on the Court.  Examining support for the United States as a merits party paints quite a different picture, however.

We actually see on the aggregate the opposite Justices support the US as a merits party more often than we do for US agencies.  Justice Alito leads in overall support for the United States as the only Justice with over 60% support.  Other Justices with over 50% support include Justices Thomas and Scalia.  Justices Sotomayor, Breyer, Ginsburg, and Kagan are all in the 40% range for US support.  Putting all of this together leads to somewhat surprising results.

There is about a 10% range in the Justices’ cumulative support for the United States or a United States agency as a party running from almost 52% to below 42%. The mean support level for the federal government across Justices for these cases is 46.3%.  Justice Alito tops the support level with Justice Thomas not far behind.  Justices Scalia, Kennedy, and Sotomayor are all very close in their support with Justice Roberts behind them.  Justices Breyer, Ginsburg, and Kagan at the bottom all show much lower levels of voting support for the federal government as a merits party with their aggregate votes.

To be fair, this looks at all cases equally where in reality there are significant differences in the implications across cases.  When analyzing specific cases, a partisan or ideological vote breakdown is more or less likely.  In one case in this sample, Shelby County v. Holder, where the Court struck down portions of the Voting Rights Act, the five more conservative Justices voted against the government’s position while the four more liberal Justices dissented against this outcome.

These cases are also heavily weighted towards those dealing with criminal procedural issues as this issue area composes more than twice as many cases as any other issue area in the set.  This may also help to explain the findings.  Even with this knowledge though, the Justices’ low levels of support for the federal government on the whole and the differential levels of Justice support both insinuate that some assumptions of the Justices’ predispositions may be overstated.

On Twitter: @AdamSFeldman

Justices’ votes derived from the United States Supreme Court Database

List of Justice Alito’s votes in cases where the United States was a party (coded for or against the US’ position)