FantasySCOTUS: Assessing the impact of Justice Kagan's recusals

Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor form a cohesive bloc, as their Standardized Majority Ratio (SMR) are not statistically different from 1.0. The remainder of the justices, the conservative bloc, all had a SMR significantly below 1.0, suggesting a potential holdout issue, and no solid conservative majority.

The Court’s opinion provides no insight into how the Court split. We can assume that the traditional five-member conservative bloc was not present in this case, as a five-member bloc would have been sufficient to generate a majority opinion. So who was the defector? FantasySCOTUS data suggest that Justice Anthony Kennedy, or perhaps Justice Samuel Alito joined the three liberal justices to create the 4-4 split, as they had the highest significant SMR. Here, we see Justice Kagan’s absence caused a significant split. Had she been there, there likely would have been a five-member bloc to reverse.

Primo v. Moore

In Primo v. Moore, the Court in an 8-0 decision (with Justice Kagan recused) reversed the 9th Circuit, and did not find in favor of petitioner’s claim for ineffective assistance of counsel on habeas review. Justice Ginsburg filed an opinion concurring in judgment only. FantasySCOTUS users accurately predicted this case, with 72% voting in favor of a reversal. These results were significant at a 95% confidence level.

Each member of the conservative bloc did not have an SMR significantly different from 1.0. Justices Breyer and Sotomayor had a SMR significantly above one, indicating they were likely to “defect” and join the conservative majority.

Justice Ginsburg’s SMR was not significantly different from 1, indicating that she would not defect, and stick with her liberal position. This presaged her ultimate concurring opinion. Ginsburg voted with the majority to reverse, but wrote her own concurring opinion. The SMR did sense her disagreement with the majority, though that did not result in a changed vote with respect to the outcome.

In this case, there was no appreciable impact on the outcome based on Justice Kagan’s absence. As expected, unanimous decisions are largely unaffected by a recusal.

Bruesewitz v. Wyeth

Bruesewitz v. Wyeth presented the question whether the National Childhood Vaccine Injury Act preempted state design-defect claims against vaccine manufacturers. The Court, in a 6-2 opinion (with Justice Kagan recused) found that it does, and affirmed the Third Circuit. FantasySCOTUS accurately predicted this case at a 99% confidence level, with 77% of members predicting an affirm vote.