Swing justice

This election explainer was written by Amy Howe. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

Although the justices themselves reportedly dislike the label, the term “swing justice” is often used to refer to the justice in the ideological center of the Supreme Court, who may align with either his more conservative or more liberal colleagues to provide the key vote in closely divided cases. For over a decade, after the retirement of Justice Sandra Day O’Connor in 2006 until his own retirement in 2018, Justice Anthony Kennedy was universally regarded as the swing justice. Indeed, after O’Connor’s retirement, Paul Clement – then the U.S. solicitor general – remarked that the Supreme Court “now is going to be just as conservative or just as liberal as Justice Kennedy.” Since Kennedy’s retirement, Chief Justice John Roberts appears to be the “swing justice” (or, as political scientist and statistician Adam Feldman puts it, the “anchor justice”): Roberts was in the majority 97% of the time during the 2019-20 term.