"I could carve out of a banana a Judge with more backbone than that!"-A disappointed Theodore Roosevelt, after hearing of Justice Holmes's vote in Northern Securities Co. v. United States (1)
Can the president confidently predict the ideology of a supreme Court appointee? Voters seem to think so. In 2008, polls found that the majority of voters considered appointments to the Court an "important factor" in determining their votes. (2) More than one in six voters considered it the most important factor, ahead of even war and the economy. (3) The desire to control the nomination process is not a recent phenomenon. More than two-thirds of registered voters listed supreme Court appointments as an important factor in deciding their vote in the 2000 presidential election, and the supreme Court has been a plank on presidential platforms since 1896. (4)
Voters' desire to influence the Court stands in tension with the notion that the Court is a counter-majoritarian institution. This view of the Court has fueled the legal academy's "obsessive" discourse (5) on the counter-majoritarian difficulty. (6) Still, political scientists and a number of legal scholars have questioned whether the Court is, in fact, counter-majoritarian. (7) Though Justices themselves are not elected, elected officials appoint them. Thus, at the time of appointment, Justices should reflect dominant political views. (8) Most arguments for a majoritarian Court depend on the president's and Senate's ability to appoint Justices whose decisions reflect their views. (9)
The president's ability to appoint ideologically compatible Justices is a critical issue for both voters and Supreme Court scholars. Is there any reason to think presidents actually possess this power? If they do, one would expect Justices appointed by the same president, and perhaps by presidents of the same party, to vote together at a higher rate. Likewise, if appointments bring the Court in line with majoritarian views, then at least in times of unified government one would expect Justices to align with appointees of the same president or party more often than not. (10)
But the results of presidents' Supreme Court appointments are mixed. Consider the different experiences of George H.W. Bush and his son. Both of George W. Bush's appointees, John Roberts and Samuel Alito, have similar voting records, which are thought to align with executive preferences. The first Bush Administration did not fare as well. While Justice Clarence Thomas votes with Republican appointees at a high rate, David souter voted with Democratic appointees at just as high a rate. (11) It is no surprise that appointees sometimes will deviate from executive preferences, but how often are such disappointments likely to occur? Was Souter's appointment a product of divided government, or was it part of a larger pattern of Justices who depart from executive preferences no matter who controls the senate?
Unfortunately, the data available to previous researchers have been too limited to answer this question. Leading Supreme Court scholars have been "especially handicapped" in their ability "to offer information on voting behavior prior to the Vinson Court era." (12) Indeed the "greatest single resource of data on the Court,"13 Harold J. Spaeth's U.S. Supreme Court Database, offers Justice-centered voting records dating back to only 1946.14 With just twenty-seven Supreme Court appointments since this time, the sample of Justices whose voting records are available to empirical legal scholars is too small to draw statistically confident conclusions about the president's probability of failure. (15) Scholars have begun making inroads by looking as far back as the 1930s. (16) Still, existing studies leave almost twice as many appointments unexamined as examined. They omit several appointments made during earlier periods of divided government.
Our Article addresses this shortcoming. …