Before the death of Chief Justice Rehnquist on Saturday, the nine Supreme Court Justices had worked together for over a decade. The Rehnquist Court has long been considered to be fairly conservative, with soon-to-retire Justice O'Connor being the moderate swing voter. But has she really been a moderate influence and was Chief Justice Rehnquist really the leading conservative on the Court, as everyone believes?
Based on 765 cases decided by the Court between November 1994 and February 2005, I analyzed the voting patterns of the Justices using a statistical technique called multidimensional scaling. The technique estimated the similarities in voting patterns as distances between the Justices. So, it was only natural to equate these distances to the United States, specifically, the distance between Washington, D.C. and San Francisco, CA.
Find out where the Supreme Court Justices land after the jump.
Let's start with Antonin Scalia. Justice Scalia (R) was born in 1936 and named to the Court in 1986 by Ronald Reagan to replace William Rehnquist, who had been elevated to Chief Justice. He is the most conservative of the Justices so I placed him in Washington, D.C., current home of the Bush administration.
A mere 9 miles away across the Potomac River is Justice Scalia's fellow conservative, Clarence Thomas. Justice Thomas (R) was born in 1948 and named to the Court in 1991 by George H. W. Bush to replace Justice Thurgood Marshall (D). Justices Scalia and Thomas vote together about 80% of the time.
The late William Rehnquist would be about 325 miles away from Justices Thomas and Scalia in Columbus, Ohio. Justice Rehnquist (R) was born in 1924 and named to the Court in 1972 by Richard Nixon to replace Justice John Harlan (R). He was elevated to Chief Justice in 1986 by Ronald Reagan to replace Chief Justice Warren Burger (R)
Another 325 miles from Justice Rehnquist in Springfield, IL would be Anthony Kennedy. Justice Kennedy (R) was born in 1936 and named to the Court in 1988 by Ronald Reagan to replace Justice Lewis Powell (D).
Soon-to-retire Sandra Day O'Connor would be 110 miles from Justice Kennedy, in St. Louis. Justice O'Connor (R) is considered the Court's traditional swing vote but is still far right of the scale's center in western Kansas. She was born in 1930 and named to the Court in 1981 by Ronald Reagan to replace Justice Potter Stewart (R).
Now jump 1,130 miles to the west side of the country where left-leaning David Souter would be in Salt Lake City. Justice Souter (R) was born in 1939 and named to the Court in 1990 by George H. W. Bush to replace Justice William Brennan (D).
Forty miles away, on the Utah-Nevada border, would be Stephen Breyer. Justice Breyer (D) was born in 1938 and named to the Court in 1994 by Bill Clinton to replace Justice Harry Blackmun (R).
Twenty miles further west into Nevada would be Ruth Bader Ginsburg. Justice Ginsburg (D) was born in 1933 and named to the Court in 1993 by Bill Clinton to replace Justice Byron White (D).
Finally, Paul Stevens would be in San Francisco, about 500 miles from Justices Souter, Breyer, and Ginsburg, and 2400 miles from Justices Thomas and Scalia. Justice Stevens (R) was born in 1920 and named to the Court in 1975 by Gerald Ford to replace Justice William O. Douglas (D).
How divided has the Rehnquist court been? Using the U.S. as an analogy, consider the following. Chief Justice Rehnquist, regarded as a staunch conservative, still ends up half way between ultra-conservative Justices Scalia and Thomas and more moderate Justices Kennedy and O'Connor. All five of these Justices are roughly east of the Mississippi River. The liberal Justices Stevens, Ginsburg, Breyer, and Souter are grouped together west of the Rocky Mountains. Both groups are about the same distance from the center of the scale near the Kansas-Colorado border. So what? Well, this shows that "moderates" O'Connor and Kennedy usually side with the conservatives on the Court. In fact, there's a huge divide between the "moderates" and the liberals. O'Connor is really no more a `moderate' than Justice Souter. A true moderate would fall somewhere in western Kansas.
So, where in the U.S. might Justice Roberts be should he be confirmed? Depending on who you talk to, he could be a Kansas moderate or Virginia conservative. But because he will replace Chief Justice Rehnquist, perhaps the effect might not be as great. If, however, the replacement for Justice O'Connor is more conservative then she, there would likely be a great shift to the right that would have a huge impact on the future of the court.
Assuming Judge Roberts is confirmed and is much like former Chief Justice Rehnquist in his voting patterns, the only way to achieve a fair and balanced court would be to appoint a fairly liberal Justice. That certainly won't happen under the current administration and it's likely the replacement for Justice O'Connor will be equally conservative.
In 2009, when there will be a new president in office, six of the seven remaining Justices, except for Justice Thomas, will all be over 70.