The Supreme Court regularly finds itself the target of liberals and conservatives alike for being insufficiently “on their side”. Republicans will say that the three Democrat-appointed justices all vote in lockstep. Democrats will argue the same of the six appointed by Republican presidents. And mainstream media reporting of the Court would have you believe that every case breaks down along partisan lines for a 6-3 decision.
This is rarely true, but during this term it appears especially false. Today’s verdict on Trump v. United States, challenging the former president’s claims of immunity, held along more familiar ideological lines though the decision — in favour of presidential immunity for official acts, but not unofficial acts — was not as sweeping as some had expected. The six conservative justices — with some concurrences — send the matter back to the lower courts for a facts-based analysis.
Yet what is often ignored is that the 2023-24 term of the Supreme Court has seen a high share of unanimous holdings, which has been encouraged by Chief Justice John Roberts. 13 of the first 15 cases the court ruled on this term were unanimous in their holdings, even if a few justices did add concurring opinions to note disagreement on some part of the court’s reasoning in getting there. That included one high-profile unanimous holding, Trump v. Anderson.
There, the court ruled that Colorado’s attempt to apply the Fourteenth Amendment to remove Donald Trump from the presidential ballot was unconstitutional. Political junkies expected a 6-3 split, but while the court’s three liberal justices (Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) did concur separately to note that they would have ruled more narrowly, all nine agreed on the holding.
Yet even in the split decisions, the arrangement of votes on many prominent cases would appear bewildering to anyone who thinks the justices are as straightforwardly partisan as members of a legislature. In Murthy v. Missouri, several states challenged the Biden administration’s collusion with social media companies as an unconstitutional attempt to limit free speech on those platforms. That one ended up 6-3, but not in the usual way — Justice Amy Coney Barrett wrote the opinion, joined by the three liberals and two conservatives (Roberts and Justice Brett Kavanaugh) and held that the government’s actions did not constitute a First Amendment violation.
There were others with the expected 6-3 split. In the three big cases limiting the sweeping authority of the regulatory state — SEC v. Jarkesy, Loper Bright Enterprises v. Raimondo, and Corner Post v. Federal Reserve — the lineup was predictable. Was it partisanship at work? Maybe. But it would also make sense that in these high-profile cases, the justices were nominated based on how presidents assessed their judicial ideas and temperament.
The pragmatic, conservative heart of the Roberts Court is Roberts and Kavanaugh, often joined by Barrett or Neil Gorsuch. That they sometimes combine with the liberals instead of their fellow conservatives flummoxes those who would see the judiciary as just another forum for political power, but it’s a good thing for the nation. These justices are inclined against sweeping, activist decisions, which was on display in Trump v. U.S. when the court told lower courts to conduct fact-based analyses of the former president’s actions before deciding immunity instead of questioning — as Justice Clarence Thomas urged — the legitimacy of the entire investigation.
We have a presidency and a legislature that are both ruthlessly political and partisan, seeing each fight in terms of its short-term, zero-sum gains and losses. The court’s often odd combinations in decision-making reflect a branch of government that takes long-term, prudential concerns seriously and doesn’t just try to win the next news cycle.
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