Note: Getting Back to Basics: Recognizing and Understanding the Swing Voter on the Supreme Court of the United States

By Kristin M. McGaver. Full text here.

There is an extensive history and tradition of labeling Supreme Court Justices as “swing voters” and “swing Justices.” And yet, the content of these labels remain woefully unclear. Modern uses of the terms fall on a continuum, conveying negative to positive sentiments with no clear definition. Complicating things further, there is sometimes a conflation between the electoral swing voter and the judicial swing voter, failing to separate out the two as applied to the different branches of government. Most recently, another strain of confusion has emerged thanks to scholarship showing that swing Justice and median Justice may not always align, even though the two terms are often used interchangeably.

This plethora of uses demonstrates that there is a multi-layered and widespread confusion about what “swing” actually means when applied to a Supreme Court Justice. In light of the enormous importance the actors defined by these terms play in shaping and defining the differences between law, politics, and society in America, it is perhaps surprising to learn that scholars have yet to trace the etymology of these terms. This gap in existing scholarly literature is problematic: swing voting Justices are among the most important and mythic figures in American legal and political life, and yet it is not entirely clear what this title actually conveys. Thus, a thorough analysis of swing voter’s various meanings, its origin, and historical use is long overdue.

Against this background, this Note seeks to deepen our understanding of the origins and various uses of the term swing voter as applied to Supreme Court Justices. By detailing swing voter’s etymological history and transformation in legal and non-legal contexts, this Note acknowledges that swing voter’s meaning is not as straightforward as initially assumed, especially when the term is employed in the Supreme Court context. By deploying an etymological analysis and intellectual history, crucial tools in helping us understand and apply contested concepts and meanings, this Note seeks to discover (or perhaps reclaim) the true meaning of “swing voter” and “swing Justice” as these terms relate to Supreme Court Justices.