The Swing Justice

41 Pages Posted: 1 Aug 2011 Last revised: 10 Jul 2013

See all articles by Peter K. Enns

Peter K. Enns

Cornell University

Patrick C. Wohlfarth

University of Maryland - College Park

Date Written: August 26, 2011


In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This paper makes two theoretical contributions to the study of the swing justice and this justice’s resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reflect the Court’s most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public’s preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor — whether on the Supreme Court or any other decision making body — can lead to incorrect conclusions about the determinants of policy outputs.

Keywords: Supreme Court, Median, Swing Justice, Public Opinion, Solicitor General, Attitudinal Model

Suggested Citation

Enns, Peter K. and Wohlfarth, Patrick C., The Swing Justice (August 26, 2011). APSA 2011 Annual Meeting Paper, Available at SSRN:

Peter K. Enns (Contact Author)

Cornell University ( email )

Ithaca, NY 14853
United States


Patrick C. Wohlfarth

University of Maryland - College Park ( email )

College Park, MD 20742
United States

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