The second full term under the most conservative Supreme Court in modern history concluded last week, with major rulings on affirmative action, President Biden’s student debt forgiveness program and anti-discrimination law.
The term as a whole was not as dramatic as last year, which culminated in the seismic political and legal decision to quash Roe v. Wade, one of the most recognized precedents of the last two generations. But the initial data on the term makes a couple of things clear. First, the conservative bloc is not entirely predictable. The six Republican-appointed justices still disagree on how far or how fast to go when it comes to the priorities of the right, and there are at least some members of the Republican-appointed caucus unwilling to deliver a statement. unbroken list of victories for the Republicans each year. Second, the court is still deeply polarized and conservatives in the center are in the driver’s seat, meaning the conservative revolution that began with the appointment of Justice Brett Kavanaugh in 2018 and accelerated with the Judge Amy Coney Barrett’s 2020 appointment may soon be reversed. .
In other words, the Tories might be disappointed that they didn’t get everything they asked for this year. But that could say as much about the radicality of the cases that the court is taking as about the ideology of the judges.
An important metric of judicial ideology suggests that the court’s center of gravity has basically not changed. According to Martin-Quinn’s preliminary scores, which measure the ideology of justices against each other on each individual term, there is not a single “swing” justice, not even Chief Justice John Roberts, author of some of the top opinions of this term. Instead, Justices Samuel Alito and Clarence Thomas continue to fall to the far right edge of the court, and the other conservative justices are much harder to pick out, particularly Roberts and Kavanaugh. Meanwhile, in her first year on the bench, Justice Ketanji Brown Jackson established herself as an outspoken member of the court’s liberal minority, with blistering disagreement over the court’s decision rejecting the use of racially conscious admissions in higher education.
Last quarter, Roberts and Kavanaugh were divided on the outcome of Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade. In his opinion in Dobbs, where she agreed with the decision to uphold Mississippi’s 15-week abortion ban but said she would go no further, Roberts expressed concern about the court’s pacing. “The Court’s opinion is thoughtful and exhaustive, but those virtues cannot make up for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” she wrote. Kavanaugh, on the other hand, joined the majority opinion of Justice Samuel Alito and wrote a concordant, arguing that the Constitution “is neither pro-choice nor pro-life” and therefore the court should be “neutral” on the issue.
But that example was noteworthy because the two judges are very often on the same page. And while Kavanaugh didn’t share Roberts’s concerns about judicial restraint in Dobbs, he voted with Roberts, Barrett and the liberals this term in one of the biggest disappointments for Republicans and right-wing advocates, who were pushing the court to let it go. take a fringe. legal theory about the electoral clause of the Constitution that could have drastically reformed the way elections are conducted. The two justices also joined the liberals in a major case involving Section 2 of the Voting Rights Act, which is sure to have negative repercussions for the Republicans.
In fact, according to data compiled by Adam Feldman, legal scholar and creator of the Empirical SCOTUS website, and Jake Truscott, a postdoctoral researcher at the C-SPAN Center for Scholarship and Commitment, Roberts and Kavanaugh agreed with each other in 95 percent of cases on this term, higher than any other pair of conservative justices.
There were also times when single or paired Tory judges broke away from the larger block. Judge Neil Gorsuch, for example, joined the dissenting liberal minority in a case involving Navajo Nation water rights. And Thomas only agreed with Kavanaugh 73 percent of the time, not that much higher than the 65 percent of cases in which he agreed with Democratic-appointed Justice Sonia Sotomayor.
But overall, there was more consensus this year than last year, which can stand out as a historically harsh term. According to Feldman and Truscott, there were just five cases with 6-3 ideological splits, compared to 14 last year. There were also more unanimous decisions this term, though it wasn’t an unusually high level of unanimity.
|Amy Coney Barrett||91|
|Ketanji Brown Jackson||84|
So it may turn out that last year was something of an anomaly for the conservative majority, which is not entirely in agreement about how to tackle high-profile cases. But that also doesn’t mean the court is moderating. The five ideologically divided decisions had wide-ranging implications for American life, from the closely watched decision that struck down affirmative action in higher education as a violation of the 14th Amendment to the Constitution to the less followed but still important ruling that set significant limits. in the environment. Power of the Protection Agency to regulate the contamination of wetlands. Those decisions show that when the conservative majority is United, they continue to pursue long-standing Republican goals, such as reducing the power of administrative agencies and expanding exemptions to anti-discrimination laws.
And the fact that they are unwilling to hand the Conservatives a victory in every case may say as much about what defenders are asking for as about the court’s ideological bent. The two big surprises of this term—the ruling on the electoral clause of the Constitution and the decision on the Voting Rights Act—were cases that previous courts probably would not have agreed to hear at all. The aggressive arguments in both cases are just two examples of the way the court record is changing, with right-wing legal and political groups calling for much broader results than they would have had five or six years ago.
The liberal justices, meanwhile, didn’t dissent as much as last year, but when they did object, it was bitter. In the affirmative action case, the court’s two black judges directly criticized each other while arguing about the country’s history of racism and the current reality of racial discrimination. In his 6-3 majority opinion on Biden’s student debt forgiveness plan, Roberts criticized the Democratic-appointed bloc’s objections to that case and others, writing that it was unfair for liberals to say the conservative majority was “going beyond the proper role of the judiciary.” The liberals, for their part, were not about to mince words; In a lengthy opinion on the anti-discrimination case that he read from the witness stand, Sotomayor wrote: “Today, the Court, for the first time in its history, grants a business open to the public the constitutional right to refuse to serve members of a class protected.”
The clashing opinions were a sign that while consensus is possible on this Supreme Court, disagreements between justices are fierce and sometimes even personal. And while the minority is determined to keep speaking out despite the imbalance of power on the court, the court’s conservatives are still scoring important victories for the country’s right.