The Supreme Court Might Have Three Swing Justices Now

When Justice Anthony Kennedy retired from the Supreme Court last summer, one big question was whether another justice would continue his legacy as the court’s “swing” vote. Kennedy wasn’t really a moderate, but he did serve as the court’s ideological fulcrum for more than 10 years, dramatically breaking from his conservative colleagues in high-profile cases on abortion and gay marriage. And with the appointment of Brett Kavanaugh, a federal judge and former Kennedy clerk who joined the court in October after allegations of sexual misconduct, the court seemed almost certain to shift its center of gravity to the right, potentially leaving Chief Justice John Roberts in the role of “swing” justice.

Now that this year’s Supreme Court term is over, we know that Kavanaugh is shaping up to be a solidly conservative justice — he barely beat out Roberts as the court’s new median and voted most frequently with Roberts and Justice Samuel Alito. And although Roberts did step several times into the role of “swing” justice, he wasn’t the only conservative justice who joined the liberals over the course of the term. Although he wasn’t in the middle ideologically, Justice Neil Gorsuch, Trump’s other nominee, was actually the most likely to join the liberals in closely decided cases.1 In fact, each of the conservative justices joined the liberals in a 5-4 or 5-3 decision at least once. With a newly cemented conservative majority on the court, the days of a single “swing” justice may be over.

Here are three takeaways from the term that can tell us what direction the court’s new conservative majority is moving, and what role Kavanaugh is playing:

The court’s new median justice is Kavanaugh, continuing a trend to the right

Last year, we wrote that Roberts would likely land at the ideological center of the court in Kennedy’s absence, and he did — but so did Kavanaugh, who voted in almost total lock-step with Roberts. In fact, Kavanaugh was actually slightly closer to the center than Roberts was, according to their Martin-Quinn scores, a prominent measure of judicial ideology calculated by scholars Lee Epstein and Andrew Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan using data from the Supreme Court Database. As the chart below shows, their scores were almost indistinguishable:

Kavanaugh’s score this term is very similar to Kennedy’s score from the last term, but Kennedy was somewhat unpredictable in his last few years on the bench, occasionally shifting into liberal territory. The fact that Roberts and Kavanaugh are now at the median means the court’s ideological center will likely be solidly conservative going forward. The shift, though, didn’t put the court in dramatically new territory, since Kavanaugh’s score is still similar to Kennedy’s in many of the years when he was the median justice.

The conservative bloc is more diverse than you think

One way to understand how the justices are approaching their work on the court is to look at how frequently they vote with each other. The alliances the justices form can illuminate the kind of conservative or liberal they’re turning out to be. And one of the biggest trends of the term was the stark distinction between Gorsuch and Kavanaugh.

Using SCOTUSBlog’s final statistics, I looked at the justices’ votes throughout the term. In these pairings, Kavanaugh closely aligned with Roberts and Alito, voting with Roberts 94 percent of the time and with Alito 91 percent of the time. But he only voted with Gorsuch 70 percent of the time — which meant that he voted with his fellow Trump appointee as often as he voted with liberal justices Elena Kagan and Stephen Breyer. Gorsuch, by contrast, voted most frequently with Thomas.

Kavanaugh was, overall, more moderate than his fellow Trump appointee. Gorsuch had a somewhat idiosyncratic voting record, even though he was still further to the right ideologically. For instance, Gorsuch cast several tie-breaking votes that favored criminal defendants, earning him unexpected praise from the left and solidifying his reputation as a skeptic of big government in all forms.

There isn’t a single “swing” justice anymore

Based on how they have ruled this year, there are now three justices who could reasonably be seen as “swing” votes of one kind or another: Roberts, Kavanaugh and Gorsuch. And it’s possible to argue that all — or none — of these justices have replaced Kennedy as the court’s “swing” justice. Roberts and Kavanaugh are more ideologically moderate than Gorsuch, but Gorsuch was more of a loose cannon. He joined the liberals in more closely divided cases than any of his conservative colleagues. That made him the “swingiest” conservative on the court, even though it was Roberts who ultimately determined the outcome of one of the most closely watched cases of the term when he voted to keep a question about citizenship off the 2020 census form for the time being.

In an odd way, the lack of a single “swing” justice may have created new opportunities for the court’s liberal minority to forge alliances with the conservatives. As I wrote last year, Kennedy voted in a conservative direction in 71 percent of the closely divided cases he was involved with through the October 2016 term. This year, less than half of the closely divided cases pitted the conservatives against the liberals, while each of the conservative justices joined the liberals in at least one case.

But some of the most important trends of the term aren’t visible in the data — and they indicate the conservative bloc may still be figuring out its strategy. Several of the conservative justices, including Gorsuch, were open about their willingness to reconsider key precedents involving abortion and the administrative state, to the alarm of their liberal colleagues. So it’s entirely possible the balance of power on the court is still shifting, and if these precedents are threatened in future terms, Roberts won’t be the only justice to watch. Trump’s appointees will play a central role in determining the court’s direction in the next term and beyond.

Can Heitkamp Pull Off A Second Upset In North Dakota?

Welcome to Pollapalooza, our weekly polling roundup.

Poll(s) of the week

Democrats’ chances of holding on to the North Dakota Senate seat — which is critical if they stand any chance of winning the upper chamber — look quite bleak according to a recent Fox News poll. Sen. Heidi Heitkamp has long faced a tough uphill battle to win re-election in a state that President Trump carried by 36 percentage points in 2016. As you can see from the seven polls we’ve collected on the race so far, Heitkamp has trailed Republican Rep. Kevin Cramer for months. And two recent polls suggest that Heitkamp lost even more ground in the last couple of weeks, falling 10 to 12 points behind her opponent (before poll adjustments); in early September, she was only 4 points behind.

FiveThirtyEight’s Classic forecast currently gives Heitkamp just a 1 in 3 chance of winning re-election. Those odds aren’t great, but Heitkamp surprised everyone in her first bid for the seat in 2012 — more on that in a moment.

There is some speculation that Heitkamp’s vote against Brett Kavanaugh’s Supreme Court nomination — a decision that was both politically and personally difficult for her — may have eroded the senator’s support among voters.9 But it’s difficult to say what impact, if any, her vote against Kavanaugh has had, as there hasn’t yet been any polling since the vote. That said, since the North Dakota contest is one of the most competitive Senate races this year, there will probably be at least a few more polls in the final weeks before the election.



Make no mistake, the polling so far is not great for Heitkamp, but this is a political candidate well acquainted with being an underdog. Heitkamp trailed her opponent in several polls in 2012, only to go on to win by less than 1 percentage point. It was one of the biggest election upsets that year. What’s more, her victory came even as Barack Obama lost the state to Mitt Romney by 20 points.

Although Heitkamp was able to pull off an improbable victory in 2012, there are already some signs that she might not be able to do the same this time around. Our polls database shows that eight polls conducted in October 2012 had her losing the race by as much as 10 points or winning it by as much as 6 points. But polls this year tell a different story. Only one poll has found her ahead, and it was conducted in February. The most recent poll suggests she’s trailing by as much as 12 points.

The political environment is more favorable for Democrats this year than it was in 2012, which could give Heitkamp a boost, but unfortunately for her, North Dakota has likely moved more to the right since she was elected, making it tougher for Democrats to compete there. To give you a sense of just how hard it is for Democrats to win in the state right now, consider North Dakota’s 2016 Senate race, where Democrat Eliot Glassheim lost to incumbent Republican John Hoeven by a whopping 62 points. And in this year’s congressional race,10 the Democratic candidate has less than a 1 in 100 chance of winning.

It could also be that Rep. Cramer is a stronger candidate than Heitkamp’s 2012 opponent was. That year, Rep. Rick Berg was a one-term congressman and one of the wealthiest members of Congress, who drew criticism for his ties to a controversial property-management company. But Cramer, a three-term Congressman, seems to be just as well liked as Heitkamp. What’s more, President Trump has a 64 percent approval rating in the state and has endorsed Cramer and even held a rally for him earlier this summer.

In 2012, Heitkamp’s strategy was to focus on local issues, like farming and energy, and avoid partisan politics. But that same strategy might not work as well this time around as she faces an increasingly nationalized landscape where more voters opt for the same party in every race. Furthermore, Heitkamp did not have a voting record to criticize in her first run. Now she does. Heitkamp has voted in line with Trump just 54 percent of the time, far less than we’d expect based on Trump’s margin of victory in her state. She voted against the Republican attempt to repeal the Affordable Care Act and against the GOP’s tax plan, opening her up to attacks from conservatives. But voting alongside Republicans may not have helped her re-election bid either. Her vote for the Keystone XL pipeline for example, could hurt her with Native American voters, who helped put her in office in 2012. And even if most Native American voters still support her, new voter ID requirements in the state are expected to depress turnout among tribe members in this election.

In the end, voting against Kavanaugh may be the least of Heitkamp’s worries. Heitkamp has less than a month to improve her poll numbers (or outperform them), and if she doesn’t, Democrats’ longshot odds of taking back the Senate become much longer.

Other polling nuggets

  • In Tennessee, a Siena College/New York Times live poll, which updates in real-time as respondents are called, has Republican Rep. Marsha Blackburn leading her Democratic opponent, former Gov. Phil Bredesen, by double digits. FiveThirtyEight’s classic forecast, which considers both polling and fundamentals, now gives Blackburn a 4 in 5 chance of winning, allowing Republicans to keep control of the seat. But our Lite forecast, which only uses polling data and listed the race as a toss-up last week, now gives Blackburn a 3 in 4 chance of taking the seat.
  • In Virginia’s 10th District, a Washington Post-Schar School poll found Democrat Jennifer Wexton with a double-digit lead over Republican incumbent Barbara Comstock. The FiveThirtyEight Classic model gives Wexton a 5 in 6 chance of unseating Comstock.
  • CNN found a 35-point gender gap in its most recent generic ballot poll; that’s up from a 29-point gap last month. Sixty-three percent of women and 45 percent of men said they were more likely to support a Democrat in their congressional district. Only 33 percent of women said they were more likely to support a Republican candidate, compared to 50 percent of men who said the same.
  • 80 percent of adults in sub-Saharan Africa own a mobile phone according to a survey conducted by Pew Research Center.11 While that percentage has held steady since 2014, rates of internet usage and smartphone ownership have increased.
  • According to a Pew Research Center survey, 38 percent of Canadians and 31 percent of Mexicans believe that the U.S. government respects the personal freedoms of its people. That’s down significantly from 2013, when 75 percent of Canadians and 55 percent of Mexicans said the same. What’s more, in 21 out of the 22 countries surveyed, negative perceptions of the U.S. government were more common than they had been in 2013.
  • 42 percent of adults in the U.S. say that they “strongly disagree” with the notion that they are interested in the political and social opinions of celebrities whose work they enjoy, according to a Morning Consult poll conducted with The Hollywood Reporter.
  • A poll of young people aged 18-24 conducted by the Center for Information & Research on Civic Learning and Engagement and GfK found that 34 percent say they are “extremely likely” to vote this November. If that comes to pass, it would be an unusually high turnout rate for young adults in a midterm election.
  • A study conducted by the Pew Research Center found that two different sampling methods for national political polls, random digit dialing (RDD) and registration-based sampling (RBS), yielded similar results. RDD involves finding a selection of potential voters that is representative of the national electorate by dialing random numbers, while RBS involves conducting polls using a list of registered voters. Many national polls use RDD, but this research suggests RBS may also produce good results.
  • Brazil’s presidential election has gone to a runoff after no candidate gained at least 50 percent of the vote during the first-round elections on Sunday. Far-right candidate Jair Bolsonaro won 46 percent of the vote, while his best-performing opponent, leftist Fernando Haddad, won just 29 percent. Although polling prior to the first round suggested that a Bolsonaro-Haddad runoff could be close, a Datafolha poll published after the first round of voting found Bolsonaro leading Haddad 58 percent to 42 percent. The runoff election will be held on Oct. 28.

Trump approval

The president’s net approval rating currently sits at -10.7 points , according to our tracker. That’s about the same as it was one week ago. But Trump is doing better with voters than he was one month ago, when he had a -13.5 net approval rating (40.0 percent approved and 53.5 percent disapproved).

Generic ballot

Democrats haven’t improved their position by much over the last week. According to our generic congressional ballot polls, Democrats lead Republicans by an 8.3-point margin (49.7 percent to 41.4 percent). Last week, Democrats had a 7.7-point advantage over Republicans. One month ago, they were doing slightly better with an 8.6-point margin against Republicans.

Check out our 2018 House and Senate forecasts and all the polls we’ve been collecting ahead of the midterms.

CORRECTION (Oct. 12, 2018, 9:15 a.m.): A previous version of this article incorrectly identified Rep. Marsha Blackburn as an incumbent senator in Tennessee. Republican Bob Corker currently holds the seat.