Monday, June 11, 2012

Part 9: Focus on Justice Kagan. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Elena Kagan.
President Obama's 2nd appointee.

Neutral, non-partisan, non-ideological, disinterested, detached, moderate, and leaving policy up to the other 2 branches.
Just like the rest of the Justices.

Which means not really, not much, maybe not at all.

Justice Kagan was a member of the Court for only the latter of the two terms examined for this series of posts. But even after just one term, there is little that's ambiguous about her record. At least with regard to the partisan and ideological character of her voting.
[For earlier discussions on New York Court Watcher about Justice Kagan and her confirmation hearings, see]

So, what does Kagan's record look like for that one year--her first year on the Court? Let's begin, as usual, with those highly partisan-charged cases.
(click to enlarge)
100% voting like a partisan Democratic politician would.

Remember, Justice Kagan was on the Court for only one of the two years reflected in this graph. So the data for her represents her voting in that one year, Fall 2010 through Summer 2011 (i.e., the "October 2010 Term").

Five of the twelve highly partisan-charged cases we've been considering in this series were decided in that year. Kagan participated in 4 of them. She voted in all 4 the way a Democratic politician towing the party line would be expected to vote.

She voted to allow a class action against Walmart for sex discrimination, and to allow a challenge to Arizona's tuition tax credits for students attending religious schools. She voted to uphold Arizona's campaign finance regulations, and to uphold a lower court's order that California reduce overcrowding in its prisons.

In the more generally ideologically-laden cases, her voting was similarly one-sided. Here it is.
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91% voting like a political liberal. No Justice on the Court has a record that is more ideologically lopsided. (Not that others aren't similarly lopsided in their voting.)

Of the total of 60 ideologically-laden cases decided over the course of the 2 years, 28 were decided in the latter year when Kagan was on the Court. She participated in 22 of those cases. In 20 of the 22, she took the same position that a political liberal would take.

Stated otherwise, she voted like a political liberal--like a liberal politician would--in all but 2 of those cases.

In those 2 cases, she sided with the conservative Justices and law enforcement. She voted to reject the retroactive application of a recent Supreme Court decision that protected drivers against warrantless searches of their automobiles. She also voted to allow warrantless searches in emergency situations that are triggered by lawful actions of the police.

Other than those 2 cases, she consistently took the politically liberal position. E.g., consistently siding with the rights of the accused, with government regulation of business, with workers, and with consumers.

How activist and how restrained?
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Like other liberal Justices, Kagan's record is one of deferring to the other branches more frequently than overruling their decisions. In short, it's one of more restraint than activism. But again, as with the other liberal Justices, that record is the result of most of the laws at issue being ones that political liberals would prefer.

Kagan participated in 6 cases in which the choices of the other branches or the states were at issue. She voted to uphold 4 of them. In 3 cases she voted to uphold state laws favoring consumers in lawsuits against business. In the other, she voted to uphold Arizona's law providing public financing for election campaigns.

On the other hand, she sided with the challenge to Arizona's tax credits for students attending religious schools, and she voted to invalidate California's law against selling violent video games to minors.

So 4 restrained votes. 2 activist ones. All politically liberal.

Let's put it all together.
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Kagan's record, for her rookie year on the Court, was near perfect. That is, for a partisan Democrat and a political liberal. She cast no votes in the highly-charged cases that a partisan Republican politician would, and, in the larger pool of cases, she voted a mere 9% like a political conservative.

She only voted like an activist--i.e., to overrule the judgments of the other branches or the states--33% of the time. But, then again, her record on that score merely reflects the politically conservative versus politically liberal divide of the laws at issue--voting to invalidate the former and to uphold the latter.

Finally, flipping the partisan and ideological numbers:
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Maybe this graph shows more clearly just how one-sided Kagan's first year record is. 100% partisan Democrat; 91% politically liberal. In fact, no one's record on the Court is more lopsided.

So, to recap Justice Kagan's record for her first year on the Court:
Partisan: 4 out of 4 like a partisan Democratic politician.
Ideological: extremely like a political liberal.
Activist: not so much, because most of the laws at issue were politically liberal.

Next post: a very quick look at retired Justice Stevens, Kagan's immediate predecessor, who was on the Court for the 1st of the 2 years studied for this series.

[Again, for earlier discussions on New York Court Watcher about Justice Kagan and her confirmation hearings, see

For the posts in this series on New York Court Watcher that focused on the other Justices, see Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012; Part 3: Focus on Justice Thomas, May 6, 2012; Part 4: Focus on Justice Ginsburg, May 10, 2012; Part 5: Focus on Justice Breyer, May 14, 2012; Part 6: Focus on Chief Justice Roberts, May 18, 2012; Part 8: Focus on Justice Sotomayor, June 1, 2012.

As stated in previous posts, this series is based on my research over the last several weeks. The pool of cases on which my findings are based is explained at the end of each of 3 previous posts on New York Court Watcher. See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012; Part 3: Focus on Justice Thomas, May 6, 2012]