Why You Cannot Find a Swing Justice When You Really Need One

From Richard Nixon’s 1972 appointment of swing Justice Lewis Powell until Donald Trump’s 2018 appointment of Brett Kavanaugh (to replace swing Justice Anthony Kennedy), the swing Justice ruled the roost. Sometimes voting with the Court’s conservatives and other times with its liberals, the swing Justice often cast the deciding vote and often embraced a sui generis middle ground. Those days now seem like a distant memory. An ideologically simpatico majority coalition drives the post-2018 Roberts Court (especially after Justice Amy Coney Barrett filled Justice Ruth Bader Ginsburg’s seat in 2020).

In this Article, I will use the Court’s affirmative action in higher education cases to better understand why the swing Justice was pivotal from 1972 to 2018, why there are no swing Justices on the post-2018 Roberts Court, and why the swing Justice will not return. In so doing, I will connect the demise of the swing Justice to the simultaneous rise of party polarization and the conservative legal movement. I will also explain why this linkage of party and ideology did not begin until 2010 and how it is that this linkage could contribute to the eventual packing of the Court. Swing Justices may be critical to the survival of a nine Justice Court, but these “Super-Justices” cannot withstand the kryptonite of party polarization.

This abstract has been taken from the author's introduction.