An Alternate SCOTUS Portrait

With the passing of Justice Ruth Bader Ginsburg in September of 2020, the question of U.S. Supreme Court term limits once more entered our broader national discussion, with a bill implementing 18-year term limits currently proposed in the House of Representatives. While the discussion of such legislation generally looks to the future of the Court, this visualization looks back over the past 50 years to explore the presumed effect of such a limit on Court composition and select decisions during that time. This 'Alternate history' was primarily intended as an exploration of perception, and aims to change as little as possible about the conditions under which decisions were made. In the end, it sheds light on how perceptions today may not align with the reality of yesterday. A full explanation of the reasoning and methodology can be found in this report that covers the data analysis side of this project.

Heatmaps on either side show the Court composition by month over the 50 years, with individual Justice's color-coded blue (Liberal) to red (Conservative) by their Martin-Quinn ideological score. The pie and doughnut charts below can be toggled to show Actual and Alternate Justices for the term that select decisions were handed down. Brackets denote unnamed replacement Justices, labeled with the President who would have appointed them and that President's total number of appointments at that time. Hovering over any part of the doughnut chart will also display the Justices' ideological color-coding.

Actual Justices (1-9)
Case Studies
Alternate Justices (1-9)

Obergefell v. Hodges : June 26, 2015

This landmark decision, which guaranteed the right to marry for same-sex couples as a fundamental liberty under the Fourteenth Amendment was actually decided 5-4, with median Justice Anthony Kennedy casting the deciding vote. In the Alternate timeline Kennedy is replaced by Bill Clinton’s 4th appointment and the decision remains the same.

Citizens United v. FEC : January 21, 2010

The Actual Court ruled that, regardless of a donor’s corporate identity, political funding, as a kind of free speech, cannot be limited. Kennedy was also the swing vote here, this time siding with the Conservative wing and, by a 5-4 decision, “big money” was not regulated. However, in an Alternate Court, Kennedy is once more replaced as median Justice, this time by Stephen Breyer, who switches the Majority to the Liberal side and a 5-4 rejection of unlimited corporate donations.

Bush v. Gore : December 12, 2000

While the Court solidly (7-2) ruled Florida's disparate recount methods in the 2000 presidential election unconstitutional, it is the 5-4 majority that halted the recount that is most noted in popular memory. Yet again, Kennedy is the deciding vote. In the Alternate timeline: David Souter takes his place; that vote is presumably 5-4 on the Liberal side; some form of recount proceeds; and Al Gore still stands a chance of being the 43rd President (though the likelihood of that result is itself debated).

Texas v. Johnson : June 21, 1989

In this landmark case on free speech, the Court ruled that burning the American flag is protected under the First Amendment. In both Actual and Alternate timelines, the vote is 5-4. Yet while Court composition is the same, vote composition is different. The Actual sees a crossing of ideological lines that includes both Marshall and Scalia voting with Kennedy. The presumption of the Liberal wing (with Kennedy) as pro-expression in the Alternate does not change the outcome, but flaws in presuming votes based on ideology begin to show.

Roe v. Wade : January 22, 1973

One of the most famous and contentious cases in Court history, the polarizing nature of the topic is belied by the Actual 7-2 decision in favor of ‘Jane Roe’ and protection of abortion rights. The Court’s composition in the Alternate timeline remains exactly the same — and remarkably similar to the Court’s composition today. Yet if we apply the kind of Liberal-Conservative central line that we presume with today’s Court, abortion rights are likely not protected to the same degree.

If we look to the past to interpret the present and consider our future, then what does the application (and presumptions) of the ideologies in this Alternate timeline say about a nation’s views (founded or unfounded) on the composition of the Court today? Is it telling to look at the headlines that fear an overturning or crippling of Roe v. Wade by a Court that resembles one that voted 7-2 in favor of ‘Jane Roe?’ Has the polarization that has infected other branches of the U.S. government officially infected the most impartial — or at the very least, its citizens’ perceptions of it? While this may not ‘prove’ the need for term limits, it certainly presents a strong case. If the Judiciary, like the Legislative and Executive, is viewed as an ideological body, then perhaps similar temporal limits are not such a bad idea.

Copyright 2020 Michael L Kelly : Information on Court decisions as described in the Case Studies was researched using and much of the text was adapted from my own research report that utilized that site, which is available for download via the link in the introduction.