With SCOTUS, the Statistics Belie the Vibe

The Left laments a political Supreme Court, but it’s the liberal justices who vote in lockstep.

This month’s return of the Supreme Court after a long summer recess coincides with the Court’s reinsertion into national political debates amid a presidential election campaign. Though the new term doesn’t look to have the blockbuster cases we’ve come to expect, looming election litigation and other less predictable developments will doubtless keep the Court in the headlines through its annual June crescendo.

Democrats are counting on that, maintaining steady criticism of what Senate Majority Leader Chuck Schumer has called a “MAGA Supreme Court.” From Schumer’s earlier threats against Justices Neil Gorsuch and Brett Kavanaugh—“You have released the whirlwind, and you will pay the price”—to President Joe Biden’s calling it “not a normal court” (after its popular ruling overturning racial preferences in college admission), the rhetorical onslaught has only intensified. At a Senate hearing last month, Judiciary Committee chairman Dick Durbin labeled the Court’s rather milquetoast ruling on presidential immunity a “game-changing act of judicial fiat” that puts presidents above the law. 

At a minimum, these attacks represent a transparent attempt to delegitimize the Court for the sake of a political narrative; perhaps more ambitiously, they could lay the groundwork for a court-packing attempt in the future. If the Left can convince the public that the Supreme Court has lost its independence and become a mere organ of conservatives and especially of former President Donald Trump, then there’s potential electoral benefit—as well as future capture of the institution—to be gained.

For the moment, the Left is only convincing itself. The Court’s approval rating is now higher than it was before it overturned Roe v. Wade, though the partisan gap has never been greater. Moreover, at a time of historically low institutional trust, the judiciary enjoys more public confidence than any other part of the federal government and significantly more than the media organizations that amplify most attacks against it.

Still, President Biden caved to activist pressure this summer by announcing a sweeping “reform” proposal that would retire the three most senior justices (John Roberts, Clarence Thomas, and Samuel Alito) and allow lower-court judges to force recusals in controversial cases. It’s ironic, because Biden and Bernie Sanders (of all people) were the only two Democrats in the 2020 primaries to come out against court-packing. Kamala Harris was favorably disposed back then, so it’s no surprise that she quickly endorsed the Biden proposal and is now running on it.

Senate Democrats, meantime, introduced a bill that would add six justices, make it harder for the Court to overturn laws, deem nominees confirmed if the Senate doesn’t vote on them, and require audits of justices’ tax returns. None of this has a chance to pass so long as the filibuster is in place—which won’t happen if Republicans take the Senate—but it’s a stark reminder of the Left’s frustration with its loss of the Court for the first time since Franklin Roosevelt proposed to pack it in the 1930s. As Dan McLaughlin recently put it:

The sole reason we are talking about restructuring the Supreme Court is that liberals and progressives are unhappy with the outcomes of its decisions. That’s the thing. It’s the whole thing. It’s the only thing. It’s the entirety of the thing. It’s 100 percent of the thing. There’s no other thing.

Despite Schumer’s admonition, it’s really a 3-3-3 court—with Justices Thomas, Alito, and Neil Gorsuch on the right; Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson on the left; and Justices Roberts, Brett Kavanaugh, and Amy Coney Barrett in the middle. It’s that middle triumvirate that’s in command. Last term, it joined the conservatives to tighten rules for challenging gerrymanders, invalidate a ban on bump stocks, overturn Chevron (judicial deference to administrative agencies), permit cities to break up homeless encampments, and grant presidential immunity for official acts. And it joined the liberals to keep Idaho’s abortion restrictions blocked, allow the government to collude with tech companies to censor speech, and set aside state laws regulating social-media platforms.

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The court leans right, yes, but it’s no monolith, and it clips the wings of aggressive conservative litigators and lower-court judges alike. Indeed, last term, for the first time in living memory, the Supreme Court reversed the Texas-heavy Fifth Circuit more than the California-based Ninth Circuit. And in the previous term—which featured historic rulings on gun-rights and affirmative action—the justices least in the majority were Thomas and Alito. As the kids would say, statistics belie the vibe.

Only 11 of the 58 opinions in argued cases last term resulted in “partisan” 6-3 splits and nearly half the decisions were unanimous. (The previous term saw only five “partisan” 6-3 votes and a similar rate of unanimity.) There were also five 5-4 rulings in five different configurations, in four of which the liberal trio held together.

That’s the real story here: much as Senator Sheldon Whitehouse beats the drum about conservatives’ politicization of the judiciary, it’s the Democratic appointees who vote as a bloc much more than their Republican-appointed counterparts. In 2019, Whitehouse put out a report assailing the “Roberts Five.” I refuted that argument with basic statistics. Five years later, even with a change in personnel (and the addition of a sixth justice, Barrett, to Whitehouse’s tally), the story hasn’t changed.

Last term, there was complete alignment among Democratic appointees 90 percent of the time (in 52 of 58 cases), whereas the Republican appointees stuck together 66 percent of the time (in 38 cases). If you exclude the unanimous decisions, the disparity is even more stark: 81 percent alignment among D-appointees versus 35 percent among the R-appointees. That’s not a fluke; the previous year was remarkably similar, such that the combined record of the “Jackson era,” with the Court’s current composition, finds D-appointees together in 78 percent of non-unanimous cases (89 percent overall) versus 30 percent for R-appointees (63 percent overall).

This dynamic isn’t something that sprang up in the Trump or Biden eras. Going back further, to the 2014–15 term—the last full term before Justice Antonin Scalia’s death, and with Justice Anthony Kennedy at the height of his swing-vote power—the four liberals stuck together in 32 of 43 non-unanimous cases, while the four conservatives (not counting Kennedy) voted as a unit in 16.

There’s a lot of fluidity on the right, with varied interpretive methods that include differing applications of originalism and textualism. Case in point: Justice Barrett last term debated the use of “history and tradition” with fellow Trump appointees Gorsuch and Kavanaugh across multiple opinions.

Conservatives lament Justice Gorsuch’s “betrayal” in the 2020 Bostock case, which found protections for sexual orientation and gender identity in employment antidiscrimination law, not to mention Chief Justice Roberts’s saving Obamacare in 2012 by transforming the law’s individual mandate into a tax. Justices on the Court’s left flank offer no such examples of deviation in high-profile, politically salient cases.

In sum, if lockstep voting and results-driven decision-making concern you, it isn’t the Republican-appointed justices you should worry about. While activists and academics condemn the Roberts Six, it’s the Sotomayor Three that represent a bloc geared toward specific policy outcomes—progressive ones.

Reprinted from City Journal, where it appeared under the title “Supreme Disingenuousness.”