If you were to watch cable news about the United States Supreme Court, you’d be forgiven for thinking it was in the throes of an ideological war. Left-of-center writers have targeted its conservative members; politicians call the body out of touch, undemocratic and even corrupt.
President Joe Biden claimed the court’s rulings undermine the public’s confidence in its decisions. A 2022 Gallup poll found that while the judicial branch’s approval rating “cratered in the past two years,” it still scored higher than the executive and legislative branches in which Biden has served for 50 years. The campaign to smear the court continues.
Of course, the court isn’t infallible. It gave us flawed decisions such as Dred Scott, Plessy v. Ferguson and all the gauzy prose of Roe v. Wade. Yet the court’s role is to uphold the Constitution—not to be democratic or representative. In fact, a good court must resist being either.
But is it broken?
Mike Berry, executive director of Center for Litigation at the America First Policy Institute, argues it is not. At a recent meeting of the Kansas City chapter of the Federalist Society, Berry recited statistics that surprised even these supporters of current court decisions.
Berry began by stating that one of the strongest predictors of a federal judge’s ruling on certain cases is the political party of the president who nominated them to the court. And this holds true of the Supreme Court as well. Of our nine justices, six were nominated by Republicans and three by Democrats.
Yet Berry claims the 2023 session has the most party crossover of recent years. In its 2023 term (beginning October 2023 and running through October 2024), the court heard 59 cases out of the 4,100 petitions it received. Of the 59 heard, 22 were decided by 6-3 votes of the justices. But in only 11 of those 22 did the 6-3 decision match party lines.
Moreover, just as with the 2022 session, the court ruled unanimously in almost half (46%) of all cases. In this session, that means while 27 cases were decided unanimously, only 11 were divided 6-3 along party lines.
If the court is suffering a crisis of legitimacy, it’s not because an ideological cabal has taken over. It’s difficult to get nine coworkers to agree on pizza toppings, never mind matters involving the U.S. Constitution. It’s more likely that Biden and other partisan actors are attacking the court because of the relatively small number of rulings with which they disagree.
There’s also surprising news in the voting patterns of individual justices. The justice most likely to vote with a given majority is Chief Justice John Roberts at 96%. Justice Brent Kavanaugh is second (95%) and Justice Amy Coney Barrett is third (92%). That’s not the surprising part. Least likely to vote with the majority in any given decision are Justices Sonya Sotomayor and Elena Kagan (71% each). While it’s not surprising that those two may be outliers—it is completely surprising that they vote with the majority three-fifths of the time.
Being on the winning team in three out of five outings would be a welcome record in almost any endeavor. Yet when it comes to the Supreme Court, this is apparently the justification for attacks on its legitimacy, weakening justices’ power and/or FDR-style court packing!
If Roberts-Kavanaugh-Barret is the most frequent voting bloc, guess which three make up the least likely to vote together bloc? It’s Sotomayor, Kagan and Clarence Thomas. And how often does that gang of unlikelies vote together? Half the time. Half!
Believe what you will about various court decisions, but liberals on the court are not a banished-to-the-hinterlands caste of untouchables. Just like the conservatives, they often work together, across the divide, to uphold the greatest political document ever known.
If in this day and age the most ideologically opposed justices still manage to agree on every other vote—that’s something we should be championing, not tearing down, restructuring or reforming.
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