Is the Supreme Court Politically Partisan?

In its most recent term, the United States Supreme Court strengthened free speech by ruling that business owners cannot be punished for expression consistent with their deeply held beliefs and by ruling that affirmative action practices in college admissions violates the constitutional prohibition of racial discrimination. All this on the heels of the landmark decision in the Dobbs case, which overturned Roe v. Wade and returned the issue of abortion law to the states. Again, unsurprisingly, the Court is being accused of replacing justice and the Constitution with partisan politics by pundits who decry the Court’s conservative bias. 

However, contrary to the critics, the Supreme Court’s record reflects more of a broad consensus than partisan politics. Despite the dramatic ideological diversion of the administrations that appointed the Justices, almost half of the cases decided by the Court each term are unanimous. Though there are certainly outlier years, this was not one of them, and the trend lines have been fairly consistent since the 1950s. 

Many critics argue that last year marked the end of the Supreme Court’s “consensus,” pointing to the strong ideological divides on decisions like Dobbs, Carson v. Makin, and Kennedy v. Bremerton School District. After all, just 29% of the rulings were unanimous for the 2021-2022 term. Forty-six percent of the decisions, however, were ones in which at least eight of the nine justices ruled in agreement. That can hardly be considered a divided court.  

During the 2022-2023 term, only six of the 57 cases considered were decided along ideological lines. Twenty-seven of the rulings, about 47%, were unanimous, and over half, 56%, were decided with eight of the nine members again in agreement. Even the New York Times didn’t totally misrepresent the reality of these numbers. Of the 12 cases featured in an article summarizing the most recent Supreme Court term, only a third were decided along ideological lines. 

This year, in fact, a number of rulings featured unexpected alliances and disagreements. In one majority opinion and three concurring opinions, Trump-appointed Justice Neil Gorsuch and Biden-appointed Justice Ketanji Brown Jackson were in agreement, favoring limits on government power. In a recent case regarding the artwork of Andy Warhol, Justices Sonia Sotomayor and Elena Kagan—appointed by the same administration and both considered progressive—were in strong disagreement with one another.  

The willingness of Justices to work together often extends beyond the courtroom and can even result in cultivated friendships. The conservative iconic justice Antonin Scalia famously shared a friendship (and even vacationed) with progressive iconic justice Ruth Bader-Ginsburg. On the current court, Justice Sonia Sotomayor and Justice Clarence Thomas have cultivated a beautiful friendship despite their significant ideological differences. In her own words, Justice Sotomayor has “probably disagreed with [Justice Thomas] more than any other justice” but maintains a friendship with him because she considers him a “man who cares deeply about the court as an institution—about the people who work here.” 

The current Court consists of justices appointed by four different administrations, two progressive and two conservative. Still, a general consensus remains. Whatever ideological fault lines exist within the Court are not always determinative of its rulings, as evidenced even in its past two terms. In other words, members of the Court have deep disagreements, but it should not be considered irredeemably partisan.  

Often, those who bemoan the current state of the Court, consider it illegitimate, and call it a failed institution, only betray their own philosophical commitments. Namely, they have embraced a postmodern view of law and of the courts, which assumes that “to judge is an exercise of power,” not an exercise in the interpretation and application of the law. Thus, they cannot imagine that a ruling they do not like could be legitimate. 

In contrast, we can be assured by the relevant facts that the recent legal victories for life and liberty are not the products of the Court’s corruption but a genuine realization of justice for the nation. 

This Breakpoint was co-authored by Jared Eckert. If you enjoy Breakpoint, leave a review on your favorite podcast app. 

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