What Right-Wing Court? | Opinion

Coming out of this Supreme Court term, the mainstream media—and my Twitter feed—breathlessly proclaimed how the conservative majority doubled down on "extremism." "It's not a normal court," said President Joe Biden after the affirmative action ruling. I'm not sure how a decision to end racial discrimination is abnormal or extreme, even if it's indisputable that the last couple of days went conservatives' way.

But—and this is a big but—those big cases also tracked popular opinion, according to a poll by ABC News. More than half of Americans (52 percent) liked the ban on racial preferences, while 32 percent didn't. A plurality (43 percent) agreed that expressive professionals shouldn't have to convey messages they don't like, while 42 percent disapproved. And 45 percent backed the Court's decision to invalidate the executive erasure of student debt; 40 percent disagreed. So is the public abnormal too?

The term as a whole was no right-wing landslide. Recall that the narrative before that big trio of cases came down was that the Court was all over the place, with odd bedfellows and conservative disappointments. The last handful of decisions don't change that overall constellation of rulings.

A year ago, in the term that ended June 2022, 14 of the 60 opinions in argued cases resulted in 6-3 "partisan" splits. This term it was 5 of 58. Last term, there were 10 5-4 decisions, in all of which the three liberal justices stuck together. This term, there were six 5-4s, in four of which the liberal bloc held. That's fewer ideological splits than we've seen in many, many years—and the Court didn't split ideologically in major cases dealing with election law (Moore v. Harper) and religious rights (Groff v. DeJoy). Last term, only a quarter of the decisions were unanimous. This term, half of them were. So both the so-called "ideological" rulings and the unanimous ones reverted to the mean.

Even when you look at those few 5-4 cases, it wasn't a matter of the squishy Chief Justice John Roberts joining the liberals in dissent. Indeed, of the six 5-4s, Justices Clarence Thomas and Neil Gorsuch each joined the liberals in dissent once, Roberts and Justice Brett Kavanaugh joined the liberals in the majority twice, and in the other two cases, the liberals were split. Sure, this Court will achieve what can be considered conservative outcomes in a handful of cases with political salience, but there's a lot of fluidity.

The Justices work hard to get it right—and there are differing approaches and interpretive methods, including differing applications of originalism and textualism. Instead of having to scratch your head or guess at what some inscrutable "swing Justice" will do, there's predictability in the law. Moreover, the Court declined requests from conservatives to take up cases involving gun rights, transgender sports participation, and abortion pills.

Given that Chief Justice Roberts wrote the majority opinions in arguably the two biggest cases—those involving affirmative action and student loans—has he regained control of the Court? I'd argue that he does have the dominant hand in cases calling for prudential judgment rather than application of first principles, and that affirmative action is one area where he's never engaged in strategery anyway.

According to statistics compiled by Empirical SCOTUS, Kavanaugh is still the median justice—in the majority 96 percent of the time—but Roberts was just one case behind him, at 95 percent. The next most winning justice was Barrett, at 91 percent. That's not surprising, as most observers put these three Justices in the middle of the Court. But then, if you think the Court is right-wing, you'd expect Justices Thomas and Alito to win a lot more. Instead, they were least often in the majority, at 76 percent and 80 percent, respectively—and Thomas was only in the majority in 55 percent of nonunanimous cases. The senior associate Justice still made his mark, to be sure, with his concurrence in the Students for Fair Admissions case eviscerating Justice Ketanji Brown Jackson's race-based view of the world and sounding a clarion call for colorblind equality.

As in previous years, Roberts and Kavanaugh were the Justices most likely to agree, 95 percent of the time, and were matched this year by the pairings of Sotomayor-Kagan and Sotomayor-Jackson. Unsurprisingly, the lowest rates of agreement were Justice Alito with each of the liberal justices and then Justice Thomas with each of the liberal justices, all in the 60-65 percent range. But notably, Roberts and Kavanaugh each agreed less with Thomas than with any other Justice.

Finally, with the addition of Justice Jackson we saw perhaps the most active new Justice in the history of the Court. Jackson spoke more than any sitting Justice in more than 30 years, with the exception of Chief Justices (who have extra institutional things they have to say). And she was in the majority 84 percent of the time, more than most other liberal Justices in recent years—and again, more than Justices Thomas, Alito, and Gorsuch.

In sum, coming up with a theme for a Supreme Court term is always an artificial exercise—especially given the relatively few cases the Justices decide these days. But "extreme, abnormal Court" is a particularly inapt description this year.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. He also writes the Shapiro's Gavel Substack newsletter.

The views expressed in this article are the writer's own.