Wrapping Up the Supreme Court Term

Statistics and themes on the term that was, and a brief glimpse at the future.

The Court was really slow to release its opinions this term, with a slow roll-out that led to a June crescendo and a rare July finale. And there was a record level of unanimity and heterodox splits until the last few weeks. Ideologically split decisions tend to come at the end of each term—because of the number and length of separate opinions—and this year that was especially true, so the term felt a bit schizophrenic. The longest opinions also all came at the end, as did the decision with the most separate opinions, the Second Amendment case United States v. Rahimi, where Justices Samuel Alito and Elana Kagan were the only ones not to write down their thoughts.

While President Biden has called it an “extreme MAGA court,” really it’s a 3-3-3 Court—Justices Clarence Thomas, Alito, and Neil Gorsuch on the right, Sonia Sotomayor, Kagan, and Ketanji Brown Jackson on the left, and John Roberts, Brett Kavanaugh, and Amy Coney Barrett in the middle or center-right—a term coined by my friend Josh Blackman and picked up by everyone since. To illustrate it in a personal way, the Manhattan Institute went 8-5 in the cases in which we filed amicus briefs, gaining 11 votes from Gorsuch, 10 each from Alito and Thomas, eight each from Roberts, Kavanaugh, and Barrett, and four each from Sotomayor, Kagan, and Jackson.¹

And it’s that middle triumvirate that’s in command. It joined the conservatives to tighten rules for challenging gerrymanders, invalidate a ban on bump stocks, overturn Chevron, allow 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.

But there was definitely a conservative tilt overall. More than a third of the cases ended up 6-3, with 11 of 58 opinions on the merits in argued cases resulting in “partisan” splits—the previous term it was five—and another 10 “nonpartisan.” There were also five 5-4s in five different configurations, in four of which the left-wing trio held. But also, nearly half the decisions (47%) were unanimous. So maybe it’s a bipolar Court.