Take for example Epic Systems v. Lewis, argued on the first day of oral arguments for the 2017 term. The flow of this case started in the U.S. District Court for the Western District of Wisconsin, where Judge Barbara Brandriff Crabb, a Democratic appointee, denied Epic System’s motion to compel arbitration. The U.S. Court of Appeals for the 7th Circuit panel — comprised of Judges Diane Wood (Democratic appointee), Ilana Rovner (Republican appointee), and John Robert Blakey (Democratic appointee) — voted to affirm the Crabb’s decision. This worked out to be a partisan relationship in which the majority appointing party of the appeals court judges accorded with the appointing party of the district court’s judge, and the district court’s ruling was affirmed. The Supreme Court then reversed the appeals court’s decision with a 5 to 4 vote along partisan lines. Justice Neil Gorsuch authored the court’s majority opinion and was joined by Roberts and Justices Samuel Alito, Clarence Thomas and Anthony Kennedy, all Republican appointees. The dissenters, all Democratic appointees, included Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Because a majority of Republican appointees in the Supreme Court reversed the decision of a majority of Democratic appointees in the appellate court, this relationship was coded as partisan as well. In effect, the three decisions in the Epic Systems chain led to two partisan relationships out of two possible relationships. This reasoning was then applied to all of the Supreme Court’s decisions for the term. If partisanship really is not a factor in decision making, then we should have random outcomes, or around a 50-percent total percentage of partisanship. The role of partisanship in the decisions will be more obvious, however, if the partisanship level of decision-making lands perceptibly above this 50-percent marker.

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