The “Swing Voter” Revisited: Justice Anthony Kennedy and the First Amendment Right of Free Speech

Abstract

The prevailing definition of a “swing voter” on the Supreme Court, set out in a landmark 1990 article in The Journal of Politics and unchallenged ever since, establishes an unreasonably high standard for determining whether a Justice truly fits that critical role. This article critiques existing methods of identifying swing voting and advances a revised methodology, which is then applied to Justice Anthony Kennedy’s decisionmaking patterns on the current Court. In the case of free speech decisions in particular, we find that Kennedy epitomizes an alternative form of the “swing voter,” veering off from his more natural bloc in that important subset of cases.