The Conservative Paradox, Median Justice Proximity, and Principled Interpretation

Abstract

The fraction of the Supreme Court’s post-WWII tightly split decisions that are conservative has a persistent tilt, the fraction leans conservative. This departure from even is largely explained by the relative ideological location of the median justice, i.e., the ideological proximity of the median to the next conservative, and liberal, justice. However, the explanatory power of this model only exists in the decisions where the justices align by ideology, a minority of the 5–4 decisions, whereas in the majority where the justices do not align by ideology this model has no explanatory power. Because if the justices placed ideology above their legal interpretive principles, then the justices would vote ideologically in most decisions, the inference is that justices vote according to legal principle but are appointed for the agreement of their legal principles with the appointing politicians in the politically salient dimensions of legal interpretation.

Keywords: 5-4 decisions, tightly split decisions

JEL Classification: K4,K41,H11