With the much-discussed appointment of Justice David Souter to the U.S. Supreme Court last fall, Washington watchers expected the court to continue making a significant shift to the right.
However, a new study by a Brigham Young University law professor shows that the court's 1990 voting behavior was no more conservative than in previous years. Also, Justice Souter stayed fairly middle-of-the-road in his decisions."Only a very modest overall tilt in the conservative direction seems to have occurred this term, 1990, despite the retirement of Justice Brennan and the addition of Justice Souter as the sixth conservative member of the court," said Robert Riggs, who is making his fifth annual statistical analysis of the nation's highest court.
"While our indicators show that the court voted more often for a conservative or pro-government/
anti-rights result than for a liberal one, the figures show no significant increase in conservative outcomes as compared with the 1989 term," Riggs said.
In the wake of the Justice Souter appointment, liberal organizations are already decrying the proposed appointment of Clarence Thomas as tilting the court even further to the right. But the "Thomas factor" - indeed, even the "Justice Souter factor" - may already be moot, said Riggs.
"When you have five conservative justices on the court, what does it matter if you get a sixth, or even a seventh?" Riggs said. "Five should be able to win it as easily as six."
The tide for a conservative court reached its high water mark during the 1988 term - Justice Kennedy's first full year on the court. During the 1989 term, however, Riggs' statistical analysis showed that conservative positions lost ground, with little conservative recovery in the 1990 term despite the appointment of a sixth conservative justice.
Indeed, in the case of last year's "swing votes," where decisions are decided by a single vote, the influence of the conservatives appeared to continue a decline that began in 1989.
"But that could actually be misleading," said Riggs. "The basic ideological cleavage on last year's court was a 6-3 division, with Justices Rehnquist, Scalia, O'Connor, Kennedy, Souter and White showing various shades of conservatism and Justices Marshall, Blackmun and Stevens constituting a more or less liberal bloc," he explained.
As a result, many decisions with a significant conservative versus liberal content were characterized by a 6-3 or a 5-3 split rather than with the 5-4 swing vote.
Riggs' annual study divides the court's decisions into nine groups classifying the justices' views on two "super issues": individual rights (usually identified with the liberals) and judicial restraint (generally a concern of the conservatives).
In Riggs' study, three readers study each case and discuss differences to achieve consensus on the proper classification: Did the individual justice's vote favor individual rights or judicial restraint? The addition of Justice Souter to last year's court was particularly interesting to Riggs.
"The new justice generally voted with the conservatives as expected, but he was more often in a moderate conservative position in our tables than at the extreme," he noted.
Justice Souter did, however, occupy an extreme position in voting almost exclusively for state's rights against federalism issues, not surprising for a justice newly arrived from a state supreme court, Riggs added.
"For the upcoming 1991 term, we may certainly anticipate new voting patterns and alignments should the long-time liberal Justice Marshall be replaced with the more conservative Clarence Thomas," said Riggs.