• January 26, 2022

The Supreme Court’s conservative supermajority is just beginning to flex their muscles

In many ways, the recently completed term on the Supreme Court was our first comprehensive look at one of the most important legacies of the Trump presidency – his footprint in court.

Understanding the full impact of former President Donald Trump’s policy However, the conservative supermajority of 6-3 is challenging at this point. On the one hand, this period recorded the highest proportion of unanimous judgments in the last three years. On the other hand, the last two of the court the main rulings were divided along 6-3 ideological lines. But that apparent inconsistency it may have more to do with divisions among court conservatives over how fast to move, not in which direction. Make no mistake, the court it is moving in a conservative direction, and the conservative judges are in the driver’s seat.

To understand the court’s right turn, look no further than the judge now at the center of the court: Judge Brett Kavanaugh. A position once held by Chief Justice John Roberts, this year’s preliminary Martin-Quinn Scores, a prominent measure of the judges’ ideology, suggests that Kavanaugh, not Roberts, was the median justice of this term. However, the most surprising thing here is not that Kavanuagh is in the center of the court, but the lack of natural light between the place where Roberts, Kavanaugh and even judges Amy Coney Barrett and Neil Gorsuch are estimated to fall on the court.

One way to interpret the ideological scores of the judges in this term is that there are actually multiple “middle” judges on this court, since any split decision in which the liberal judges are part of the majority involves at least two conservative judges voting. with the liberals. At the very least, Kavanaugh’s position in center court does not suggest that he is becoming more liberal – neither Kavanaugh nor Roberts are estimated to have moved to the left at all compared to where they fell last year. Rather, the replacement of the late Judge Ruth Bader Ginsburg by Barrett, whose ideological score this term is estimated to fall to the right of that of Roberts and Kavanaugh, has shifted the center of the court, and done so in a more direction. conservative.

Of course, the Martin-Quinn scores are not a perfect measure of the judges’ ideology. Another job has shown that there is no unique medium justice on the court. Instead, the different cases that come before the court often attract different “middle” judges.

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“The Supreme Court it’s not so one-dimensional like everyone says it is ” Josh fischmana University of Virginia law professor told us.

That said, a conservative quadruple consisting of Roberts, Kavanaugh, Barrett and Gorsuch has dominated court decisions this term. Kavanaugh was the majority in 97 percent of all cases for this term, and the majority in a whopping 95 percent of split cases. Roberts was not far behind. It was in the majority in 91 percent of all cases and in 84 percent of the divided cases. Barrett and Gorsuch were also the majority in more than 80 percent of the split cases. And in another sign that the court is moving to the right: Justices Thomas and Alito were in the majority 80 and 83 percent of the time, respectively, despite their images of perennial dissident. In fact, it was the three liberal judges who disagreed the most on this term, perhaps unsurprisingly given the composition of the court.

Kavanaugh is most of the time

Proportion of judges’ decisions in the October 2020 period that fell in the majority in divided cases and among all cases, by justice

Justice all divided
Brett kavanaugh 97.0% 94.6%
John Roberts 90.9 83.8
Amy coney barrett 90.7 83.9
Neil gorsuch 89.4 81.1
Samuel Alito 83.1 69.4
Clarence thomas 80.3 64.9
Stephen Breyer 77.3 59.5
Elena Kagan 75.8 56.8
Sonia Sotomayor 69.7 46.0

Barrett’s statistics are based on 12 fewer cases, as she was excluded from the disputed cases before joining the court.

Source: Kal Golde for SCOTUSBLOG

There was a lot of commotion this quarter around the number of unanimous decisions issued – 44 percent all in all, but that wasn’t that unusual. In the previous 10 terms (2010-19), an average of 47 percent of the cases were decided unanimously. And as you can see from the chart below, the speed at which the judges agreed with each other is still revealing. The three liberal justices agreed with each other much more than with any of the other justices; the same happened with the five conservative judges. In fact, the two judges who are the closest are Roberts and Kavanaugh (they followed the same path in 94 percent of all cases).

Barrett was also often by Gorsuch and Kavanaugh’s side (he agreed with each of them in 91 percent of the cases in which he participated). However, it’s worth noting that the judges’ early years can be a bit misleading: In Kavanaugh’s first term in court, for example, he agreed with both Judge Elena Kagan and Gorsuch (70 percent). But in his second term he was much more in agreement with Gorsuch (88 percent) than with Kagan (72 percent), a pattern that has also held true last year.

Here, however, is where we can see Thomas and Alito earn their reputations as the two judges least likely to agree with the other judges. This term, they both agreed with Gorsuch more (88 percent of the time), and although Alito voted in line with the other conservative justices (at least more than Thomas), both conservative justices are noted for how infrequently they they agreed with the liberal justices, underscoring how intractable some members of the court’s conservative majority are.

So what does this tell us about the court in general? As we said at the beginning, it is too early to assess the extent to which Trump’s conservative majority will fundamentally shift the law in this country to the right. But we warn that it is important do not confuse disagreement among conservative judges – which evidently exists – with disagreement over the direction in which the court is moving. Alito’s dissidents, for example, show impatience with the speed at which the court is moving, but a closer look at some of the conservatives’ views reveals that even when they are on opposite sides of Alito and Thomas, they still agree with them on the merits. Take Kavanaugh in the court’s decision to maintain the Centers for Disease Control and Prevention nationwide. moratorium on evictions due to the COVID-19 pandemic. He joined the majority opinion, even though he believes the CDC exceeded its authority by issuing the moratorium, saying that it ultimately did not believe it was worth repealing the moratorium because it ends on July 31 anyway, which is not. it is a resounding endorsement of the merits of the case. . Or take Barrett at Fulton: He joined majority opinion, but issued a separate agreement with Kavanaugh, where they both suggested they remain open to revoke the ruling in the Division of Employment v. Smith, which would drastically change the way courts evaluate laws that impose restrictions on religious groups.

Also, a caveat from the data we have analyzed is that judges’ ideology scores or how much they agree with each other does not take into account the types of cases judges hear. For example, this term, several of the highest profile cases still resulted in the An ideological split of 6-3 was expected. The Voting Rights Act of 1965 will now be less enforceable. Union access to workplaces will be restricted. Disclosure requirements because some political donations will have less oversight. And there will be none restrictions on life imprisonment for juvenile offenders.

In other words, the conservative supermajority on the court is really just beginning to flex their capabilities. The type of cases judges decide to take is as important as how they rule, and many of the cases decided that this term was taken while Ginsburg was still in court. The current court has already decided to take abortion and gun rights cases Next term: two burning questions that could give us a better idea of ​​how far and quickly the court is willing to move the law to the right.

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