For many years, the gravitational middle of the U.S. Supreme Court docket might be pinpointed to a single seat. Justice Anthony Kennedy famously occupied that function—casting pivotal votes on same-sex marriage, affirmative motion, marketing campaign finance, and capital punishment. His jurisprudence wasn’t at all times constant, but it surely was typically decisive. Together with his retirement, and the appointments of Justices Gorsuch, Kavanaugh, and Barrett, the Court docket adopted a strong 6–3 conservative majority. Many observers concluded the swing vote had vanished—an artifact of a bygone period of ideological stability.
However the story doesn’t finish there.
On this article, I analyze all 104 intently divided Supreme Court docket selections from 2020 onward—the Barrett period—every determined by both a 5–4 or 6–3 vote. The query: does a swing justice nonetheless exist? In that case, who fills that function? And simply as critically—does swing conduct rely upon the variety of case?
To reply this, I mixed full-text evaluation of opinions with voting knowledge, authorized metadata, and case construction. Utilizing pure language processing alongside doctrinal tagging from the U.S. Supreme Court Database (resembling cited constitutional amendments or statutory bases), I clustered selections not simply by linguistic similarity, however by authorized substance. These fused clusters revealed distinct situation areas—starting from Fourth Modification policing to statutory process to ambiguous constitutional rights—every with its personal swing dynamics.
With the six conservative justice majority at the very least two of those justices have to pivot to vote with the three extra liberal justices to swing a vote. Which means that by definition the notion of a real swing justice is contested. This additionally means to determine a swing justice or justices we have to have a broader perspective than was beforehand accepted when there have been 4 liberal justices, 4 conservative justices, and Kennedy who primarily voted together with the conservatives however was probably to be the swing vote, particularly in excessive profile civil liberties selections.
What emerged from this evaluation wasn’t a Kennedy-style centrist. It was a fragmented map of ideological flexibility. Chief Justice Roberts and Justice Kavanaugh swing continuously, however selectively. Justice Barrett’s affect, as soon as assumed to be rigidly conservative, is quietly growing—notably in instances pertaining to procedural equity, private liberty, or the boundaries of presidency energy.
The end result isn’t one swing vote, however a constellation of issue-specific coalitions. In some areas, the conservative bloc holds agency. In others—particularly the place dignity, restraint, or particular person autonomy are in play—the ideological traces start to fracture.
This text charts that evolving terrain: not a seek for a single median justice, however a deeper try to grasp how judicial moderation now is determined by doctrine, institutional strain, and authorized context.
The Dataset and Methodology
To investigate up to date swing voting on the U.S. Supreme Court docket, I assembled a dataset of 104 selections from the phrases starting in 2020—the interval since Justice Amy Coney Barrett joined the Court docket. Every case was both a 5–4 or 6–3 determination, representing the narrowest outcomes the place a single vote may have modified the end result.
Every entry within the dataset contains:
- The complete textual content of the Court docket’s majority opinion
- Particular person justice voting positions, coded as “majority,” “dissent,” or not current
- The bulk opinion creator, an indicator of institutional tone or consensus technique
- Authorized metadata, resembling cited statutes, constitutional provisions, and authority sorts (from the U.S. Supreme Court docket Database)
- Opinion size, handled as a proxy for authorized or cultural significance
Defining a Swing Vote
I positioned the swing votes as any occasion the place one of many six conservative justices—Barrett, Kavanaugh, Gorsuch, Alito, Thomas, or Roberts—joined the liberal bloc (Breyer, Sotomayor, Kagan, and Jackson) to kind the bulk in a intently divided case.
To make sure the swing is significant, I utilized two standards:
- The conservative justice have to be within the majority; and
- At the very least two liberal justices should even be in that majority—indicating a real cross-ideological coalition, not incidental overlap.
This operationalization allowed me to isolate not simply formal alignments, however moments of ideological motion throughout the Court docket’s conservative wing.
Figuring out Concern Areas: From Textual content to Doctrine
Conventional authorized datasets assign situation codes which can be typically too broad or static to seize the shifting terrain of constitutional battle. To handle this, I turned to machine studying—particularly, clustering full opinion texts alongside doctrinal metadata—to deduce a extra nuanced construction of situation areas.
The method unfolded in two levels:
- Textual Modeling: I vectorized every opinion utilizing TF-IDF, a mannequin that highlights phrases which can be particularly distinctive to a doc. I then used Ok-Means clustering to group opinions by linguistic similarity.
- Doctrinal Fusion: I augmented this with structured authorized knowledge—together with cited constitutional amendments, varieties of authorized authority invoked, and whether or not precedent was altered or constitutionality challenged. These variables had been one-hot encoded and mixed with the textual content vectors to provide fused clusters: data-driven situation areas knowledgeable by each language and regulation.
Cluster Interpretation
The ensuing clusters supplied wealthy thematic coherence. After extracting key phrases and figuring out dominant authorized provisions, I labeled every fused cluster. Highlights embody:
- Publish-Conviction & Habeas Corpus: Procedural challenges to felony convictions; rights of incarcerated people.
- 4th Modification & Police Powers: Search, seizure, and extreme pressure; doctrinal boundaries on state enforcement.
- Technical Statutory Disputes: Low-salience or bureaucratic points typically resolved by way of textualism.
- 1st Modification & Public Establishments: Expression, affiliation, and the constitutional function of public establishments.
- Residual Liberties & Institutional Pressure: Doctrinally unmoored instances involving emergent rights claims, typically with out clear authorized precedent.
Notably, abortion and bodily autonomy instances—as soon as presumed to sit down squarely in “civil rights”—seem throughout a number of clusters, most frequently within the Police Powers and Residual Liberties clusters, underscoring the fractured nature of latest jurisprudence.
With this framework in place, I proceeded to guage swing conduct not solely by justice, however by authorized terrain—utilizing these situation clusters as the first analytical lens.
Swing Justice Rankings and Patterns
With fused situation areas in place, I turned to the central query: Which conservative justices act as swing votes—and underneath what situations?
To reply this, I analyzed every occasion the place a conservative justice—Roberts, Kavanaugh, Barrett, Gorsuch, Alito, or Thomas—joined at the very least two liberal colleagues (Breyer, Sotomayor, Kagan, or Jackson) in forming the bulk in a 5–4 or 6–3 determination. These are the votes that shift outcomes and sign ideological motion.
The outcomes had been clear—and revealing.
Chief Justice John Roberts was essentially the most frequent swing vote, becoming a member of liberal-majority coalitions 31 instances. Justice Brett Kavanaugh was shut behind with 30 swings, adopted by Justice Amy Coney Barrett, who broke ranks in 22 selections. In contrast, Justice Gorsuch did so simply 14 instances, and Justices Thomas and Alito remained firmly aligned with the conservative bloc, swinging solely 8 and 5 instances, respectively.
But the story deepens when these swings are considered by way of the lens of fused situation clusters—a mannequin that integrates each opinion language and authorized substance.
Roberts and Kavanaugh had been probably to swing in instances from the “4th Modification & Police Powers” and “Publish-Conviction & Habeas Corpus” clusters—areas involving search, seizure, and felony process, the place authorized doctrine and legitimacy typically intersect. Barrett’s swing conduct additionally concentrated in these clusters, however prolonged additional into instances coded as “Residual Liberties & Institutional Pressure”—a class that features structurally ambiguous or precedent-sensitive disputes typically involving dignity, enforcement boundaries, or procedural equity.
In distinction, swings had been practically nonexistent in clusters like “Technical Statutory Disputes”, which embody administrative regulation, jurisdictional mechanics, and financial regulation—domains the place ideology tends to align with predictable blocs.
This issue-specific variation complicates any effort to establish a single fashionable swing justice within the mildew of Anthony Kennedy. As a substitute, it reveals a extra dynamic sample: a modular swing function, the place completely different conservative justices reasonable in several authorized terrains. Because the evaluation progresses, we check whether or not this sample could be predicted systematically—not simply noticed—utilizing the problem cluster as a stand-in for judicial terrain.
Roberts tends to swing when the institutional credibility of the Court docket is at stake. Kavanaugh leans towards moderation in instances implicating due course of and procedural equity. Barrett’s swings typically mirror a principled concern for liberty, construction, or dignity—particularly when the stakes contain the state’s energy to coerce.
This isn’t ideological centrism. It’s constitutional technique.
Civil Rights and the Limits of Ideological Cohesion
If there’s a fault line operating by way of the Roberts Court docket’s conservative bloc, it’s most seen in instances involving civil rights and state authority—particularly the place enforcement energy intersects with particular person liberty. These tensions are concentrated within the fused clusters labeled “4th Modification & Police Powers” and “Residual Liberties & Institutional Pressure.”
It’s on this area that swing conduct amongst conservative justices diverges most sharply.
Chief Justice Roberts has typically solid pivotal votes in these clusters. So have Justices Kavanaugh and Barrett, whose participation in liberty-reinforcing coalitions has grown in current phrases. In distinction, Justices Thomas and Alito virtually by no means be a part of liberal justices in these domains—highlighting a agency, formalist stance on enforcement and state energy.
In Niz-Chavez v. Garland, the bulk opinion was written by Justice Gorsuch and joined by Barrett, Thomas, Kagan, Sotomayor, and Breyer. The Court docket dominated that the federal government’s use of fragmented notices in elimination proceedings violated statutory necessities. As Gorsuch wrote:
“A discover to look would possibly appear to be simply that—a single doc containing all of the details about a person’s elimination listening to. However because it seems, the federal government typically serves up that data in a collection of smaller bites.”
This case exhibits Gorsuch and Barrett aligning with the liberal wing on procedural grounds—an consequence formed not by ideology, however by textual constancy and due course of logic.
In Goldman Sachs Group v. Arkansas Instructor Retirement System, Justice Barrett authored the opinion, joined by Kavanaugh, Roberts, Kagan, and Breyer. The Court docket scrutinized the category certification course of in securities fraud litigation:
“Goldman sought to defeat class certification by rebutting the Fundamental presumption by way of proof that its alleged misrepresentations really had no affect on its inventory value.”
Although framed in monetary regulation, the case displays Barrett’s concern with procedural legitimacy, a theme that drew swing alignment from each conservative and liberal justices.
In Becerra v. Empire Well being Basis, Justice Kagan, writing for almost all, interpreted a Medicare reimbursement method and affirmed the Division of Well being and Human Providers’ broader studying of statutory entitlement. The opinion states:
“The statutory description of that fraction refers to ‘the variety of [a] hospital’s affected person days’ attributable to low-income sufferers ‘who (for such days) had been entitled to advantages underneath half A of [Medicare].’”
Barrett joined the bulk, together with Thomas, Sotomayor, and Breyer—an ideologically blended coalition that bolstered the function of textual readability in high-stakes administrative instances.
Once more, the coalition spanned ideological traces, and Barrett’s vote positioned her in a camp prioritizing statutory precision and equitable software of federal advantages.
In each Biden v. Missouri and Biden v. Texas, swing coalitions fashioned on emergency aid and administrative enforcement energy. Roberts and Kavanaugh joined liberal justices in permitting the administration to proceed. Whereas the textual content of the selections is procedural, the coalition patterns affirm a versatile alignment on questions of federal authority and government discretion.
What emerges is a modular swing construction—one wherein alignment fractures not by ideology, however by situation space.
Roberts swings to protect institutional legitimacy. Kavanaugh swings when procedural justice is paramount. Barrett more and more swings when statutory language and enforcement context demand restraint or readability. These usually are not centrists within the conventional sense. They’re issue-specific swing justices, responding to strain factors in doctrine, construction, and public legitimacy.
In Dobbs v. Jackson Girls’s Well being Group, Justice Alito declared:
“The Structure makes no reference to abortion, and no such proper is implicitly protected by any constitutional provision…”
Barrett joined that majority in full. However in these civil rights instances—the place bodily autonomy, procedural equity, or state coercion are at stake—her voting sample has typically moved nearer to the Court docket’s middle.
The swing vote, then, not resides in a single conscience. It fractures by situation space, cast by way of doctrine somewhat than ideology, and anchored not in compromise however in distinct judicial philosophies.
A Predictive Mannequin of the Swing Vote
To check whether or not swing voting conduct could be predicted—not simply noticed—I skilled a collection of statistical fashions utilizing the fused situation clusters as inputs. These clusters combine each the semantic content material of opinions and their doctrinal construction, providing a richer illustration of the authorized terrain.
The purpose was simple: may realizing the problem space of a case predict whether or not a conservative justice would break ranks?
I examined three justices: Roberts, Kavanaugh, and Barrett—every a key determine in up to date swing conduct.
Utilizing logistic regression, I modeled every justice’s swing standing as the end result (1 if the justice joined the liberal bloc in a 5–4 or 6–3 majority, 0 in any other case), and the problem cluster as the only real enter. The fashions had been evaluated utilizing five-fold cross-validation.
The outcomes:
- Barrett: 78.9% accuracy
- Kavanaugh: 71.1% accuracy
- Roberts: 70.2% accuracy
To visualise how authorized context shapes swing conduct, I plotted the anticipated possibilities from every justice’s logistic regression mannequin throughout the fused situation clusters. The chart exhibits how seemingly every justice—Roberts, Kavanaugh, and Barrett—is to swing in every authorized area, primarily based solely on the problem space of the case.
These predictions affirm that swing conduct isn’t random—it’s systematically formed by situation space. In fused clusters like 4th Modification & Police Powers, Publish-Conviction & Habeas Corpus, and Residual Liberties, the mannequin assigns excessive swing possibilities to justices like Barrett and Roberts. In distinction, situation areas involving financial regulation, technical statutes, or immigration enforcement yield predicted possibilities near zero—indicating near-total bloc alignment.
These chance traits reinforce the core discovering: completely different justices swing in several authorized terrains, and people terrains could be modeled.
One Swing Justice, or Many?
To make clear the dynamics additional, I examined two competing frameworks:
- Single Swing Justice Mannequin
Treats Roberts because the definitive swing vote throughout all instances. - Concern-Particular Swing Mannequin
Permits the identification of the swing justice to fluctuate by cluster—e.g., Barrett on civil rights, Kavanaugh on felony process.
The info overwhelmingly favors the second mannequin.
Whereas Roberts stays essentially the most institutionally constant swing voter, Barrett’s predictive mannequin was the strongest, with practically 79% accuracy. Her swing conduct correlates most with instances involving state enforcement limits and constitutional restraint. Kavanaugh’s swings, in the meantime, align extra intently with procedural equity and felony course of protections.
This sample displays a dispersed structure of swing affect. The swing vote at this time isn’t a single seat—it’s a modular function, activated otherwise relying on the problem space, authorized body, and institutional stakes.
What was as soon as a matter of median ideology is now a operate of doctrinal strain and judicial logic—and that shift could be measured.
Barrett and the Lengthy View
The quantitative and case-level analyses converge on a central perception: Justice Barrett’s swing conduct, although much less frequent than Roberts or Kavanaugh, is essentially the most systematically tied to the character of the case. Whereas Chief Justice Roberts typically garners consideration because the Supreme Court docket’s institutional swing vote, the info reveals a quieter however consequential evolution: Justice Amy Coney Barrett is rising as a swing vote in key domains—notably these involving enforcement energy, procedural equity, and statutory interpretation.
Since becoming a member of the Court docket in 2020, Barrett has aligned with liberal justices in a number of intently divided selections. Her swing conduct concentrates in situation areas outlined by constraint and readability: the 4th Modification & Police Powers and Publish-Conviction & Habeas Corpus clusters. Her votes in these domains don’t sign ideological drift however mirror a jurisprudence rooted in textual rigor and structural restraint.
In Van Buren v. United States (2020), Barrett authored the opinion limiting how prosecutors might use the Pc Fraud and Abuse Act. Emphasizing statutory boundaries, she wrote:
“It doesn’t cowl those that, like Van Buren, have improper motives for acquiring data that’s in any other case accessible to them.”
Right here, Barrett narrowed the federal government’s energy to prosecute entry violations primarily based solely on motive—underscoring her view that liberty have to be protected by precision in statutory development.
Whereas Goldman Sachs arose from monetary regulation, Barrett’s opinion reveals her procedural formalism—her swing votes typically hinge not on coverage outcomes, however on statutory precision and burden of proof. Her reasoning in that case displays a concentrate on burden of proof and the procedural rights of defendants, even in high-stakes financial contexts.
Maybe most telling is her participation in Lombardo v. Metropolis of St. Louis (2020), a Fourth Modification case regarding extreme pressure. Barrett joined a per curiam majority alongside Kavanaugh, Roberts, Kagan, Breyer, and Sotomayor that vacated a abstract judgment in favor of regulation enforcement: “The three officers introduced Gilbert, who was 5’3” and 160 kilos, right down to a kneeling place over a concrete bench within the cell and handcuffed his arms behind his again… Emergency medical companies personnel had been phoned for help.”
By remanding the case, the Court docket signaled concern that decrease courts had failed to totally take into account whether or not the officers’ pressure was extreme underneath the Structure.
Barrett’s swing votes don’t seem pushed by ideology—they’re rooted in textual self-discipline, a willingness to rethink enforcement practices, and a procedural sensibility that typically leads her to coalition with the Court docket’s liberal wing. She isn’t a centrist within the Kennedy mildew. However she is more and more a structural voice for constraint—particularly when liberty, enforcement, and precision intersect.
The Fragmentation of Swing Energy
If the Roberts Court docket has a swing vote, it doesn’t belong to 1 justice. It belongs to a sample—and more and more, to a map of issue-dependent alignments.
Throughout the 104 intently divided instances, Chief Justice Roberts stays essentially the most frequent swing voter. However his affect is not common—it’s situational, formed by questions of institutional credibility and precedent. Justice Kavanaugh is almost as more likely to swing, notably in instances involving procedural equity or felony regulation. And Justice Barrett, whereas swinging much less continuously total, exhibits the clearest directional shift: a rising presence in clusters the place state energy, enforcement boundaries, and constitutional dignity are contested.
This displays not the dying of the swing vote—however its transformation. The period of a single ideological median, epitomized by Justice Kennedy, has given technique to a modular mannequin: completely different conservative justices swing in several authorized terrains, guided by distinct judicial logics.
Kennedy’s swing votes spanned doctrines and many years. His function was private, typically framed within the language of dignity and particular person autonomy. However at this time’s Court docket doesn’t hinge on persona. It hinges on terrain.
- Roberts swings the place institutional legitimacy is at stake—particularly in administrative regulation, precedent-sensitive disputes, and interbranch pressure.
- Kavanaugh swings when procedural integrity involves the foreground—instances involving arrest course of, prosecution, or due course of claims.
- Barrett swings in domains of constitutional restraint—the place liberty and dignity intersect with enforcement, and the place doctrinal readability can restrict state energy with out signaling ideological compromise.
This fragmentation has each doctrinal and predictive penalties.
It implies that counting votes is not sufficient. Understanding outcomes requires studying the opinion construction—who authored it, who joined it, and the way the bulk reasoned. Swing votes now cluster round particular authorized questions: Fourth Modification seizures, dying penalty evaluations, procedural habeas, and administrative elimination energy.
It additionally shifts how we forecast the Court docket. Ideological orientation alone isn’t predictive. The strongest fashions—like these used right here—present that swing conduct is finest understood by way of fused situation clustering. The chance of a swing could be forecast primarily based on authorized context, not political identification. Barrett, for instance, is essentially the most predictable swing vote by cluster. Roberts is extra frequent however much less modelable. Kavanaugh falls in between.
On this sense, the swing vote has not disappeared. It has dispersed—throughout justices, throughout situation clusters, and throughout a Court docket that not speaks in consensus, however in coordinated, fractured alignment.
And that, too, is a sign—not of ideological unity, however of judicial construction underneath strain.
Adam Feldman runs the litigation consulting firm Optimized Authorized Options LLC. Take a look at extra of his writing at Legalytics and Empirical SCOTUS. For extra data, write Adam at [email protected]. Discover him on Twitter: @AdamSFeldman.
