Former President Donald J. Trump has had a remarkable year on the Supreme Court. On Monday, the court ruled that Trump is effectively immune from prosecution on charges that he tried to overturn the 2020 election. On Friday, the court cast doubt on two of the four charges against Trump in the remainder of that indictment. And in March, the court allowed Trump to seek reelection despite a constitutional provision that bars insurrectionists from holding public office.
The administrative tenure was terrible: In three ideologically-aligned 6-3 decisions, the court’s conservative majority erased fundamental precedent that required courts to defer to agency expertise, significantly extended the time to challenge agency actions, and crippled the administrative courts that the Securities and Exchange Commission uses to bring enforcement actions.
The Supreme Court itself has had a turbulent term, taking on an astonishing number of major disputes and playing a leading role in shaping American society and democracy. The justices feel chastised by the backlash over their 2022 abortion decisions, persistent questions about their ethical standards, and declining public approval ratings, but they have shown few signs of restraint, such as by avoiding two abortion cases in an election year.
The Supreme Court is split 6-3 along partisan lines not only in Monday's decision on Trump's immunity and three cases involving agency power, but also in a series of key cases on homelessness, voting rights, guns and public corruption.
An unusually high percentage of split decisions in contentious cases were decided by 6-3 votes — more than two-thirds — but only half of those decisions involved the most common split: six Republican-appointed justices in the majority and three Democratic-appointed justices dissenting.
The justices also issued unanimous or ex parte decisions in other major cases, including upholding widespread availability of abortion pills, allowing the government to disarm domestic violence perpetrators, returning Trump to the Colorado election, recognizing the National Rifle Association's First Amendment rights and dismissing a challenge to the Consumer Financial Protection Bureau.
Irv Gornstein, director of the Supreme Court Institute at Georgetown University, said the court's liberal wing has had a good tenure in some ways.
“But most of these victories are the product of a flood of cases coming out of the loophole-ridden Fifth Circuit,” he said, referring to the New Orleans-based federal appeals court. “The judges in that circuit appear to be competing with each other to see who can most twist precedent and defy common sense.”
Stanford University law professor Pamela Karlan agreed, saying the “5th Circuit is making the Supreme Court look more moderate than it actually is.”
But even when the justices agreed, they often disagreed on the basis of their views. In fact, they issued a record number of concurring opinions, perhaps more than at least since 1937. Some of those opinions exposed rifts on the right over the role that history should play in interpreting the Constitution.
“There are signs of dysfunction” among the justices, said Gregory G. Galle, a lawyer at Latham & Watkins who served as U.S. attorney general under George W. Bush.
“The court is taking far too few cases, it is taking far too long to decide, and the justices are writing more and more separate opinions to express their views. This is particularly evident on the right wing of the court and is sure to create friction among the justices,” he said.
Confusion spread as the session drew to a close: On Wednesday, the court briefly announced its abortion decision and then quickly reversed it, but the decision was not made official until the next day.
The Supreme Court made 13 corrections to four opinions on Thursday, including one in which Justice Neil M. Gorsuch repeatedly referred to nitrogen oxides as nitrous oxide in a ruling blocking the Biden administration's plan to combat air pollution.
Prof Karlan said the confusion “would just be ridiculous (like laughing gas) if the courts weren't simultaneously attacking expert bodies that know the difference”.
According to data collected and analyzed by Lee Epstein and Andrew D. Martin of Washington University in St. Louis and Michael J. Nelson of Pennsylvania State University, clear patterns emerge from the Supreme Court when looking at how the justices voted in divided cases that came out after oral argument.
By that standard, the Supreme Court is highly polarized: Two of the four most conservative justices to serve since 1937 are currently on the Court: Justices Clarence Thomas and Samuel A. Alito Jr. (The other two were Chief Justices William H. Rehnquist and Warren E. Burger.)
During that same period, two of the five most liberal justices are currently in office: Justices Sonia Sotomayor and Ketanji Brown Jackson (the other three are Justices Thurgood Marshall, William J. Brennan, Jr., and William O. Douglas).
Overall, in split cases argued last term, Democratic appointees voted for the liberal outcome 83% of the time, while Republican appointees voted for the liberal outcome 33% of the time. Percentage point difference.
Chief Justice John G. Roberts Jr.’s leadership on the Supreme Court was called into question in 2022 by his solo concurring opinion in the case of Dobbs v. Jackson Women’s Health Organization, in which he was unable to convince any of his five conservative colleagues to join him in arguing for limiting but not abolishing the constitutional right to abortion.
Two years later, things are looking up. He has assigned himself an unusually large number of majority opinions in key cases during his term, including Trump immunity from prosecution, the Jan. 6 prosecution, the Second Amendment, the Chevron Doctrine and the Administrative Tribunal.
The justice has delivered majority opinions in divided cases 94% of the time, more than any other justice on the court, tying his own record for the term that ended in 2020. No other justice has delivered majority opinions more frequently since at least 1953.
But the leader for many years has been Justice Brett M. Kavanaugh. Since joining the Supreme Court in 2018, he has been in the majority 89 percent of the time, more than any justice since at least 1953.
While some have hailed Justice Thomas as the Supreme Court's true leader, the data this term contradicts that notion: For example, he was in the majority only 63 percent of the times in dissenting cases.
Last term, Justice Alito was one of the most likely to vote dissenting, voting with Justice Elena Kagan just 21 percent of the time. This term, Justice Thomas is one of the most likely to vote dissenting in both pairs, voting with Justices Sotomayor and Kagan just 9 percent of the time.
Meanwhile, the justices most likely to vote in favor were the court's liberal justices, Kagan and Sotomayor, at 94 percent.
Looking at the three justices who are most likely to vote together in divided cases confirms two conventional wisdoms and undermines the third. The Supreme Court's three liberal justices — Justices Sotomayor, Kagan, and Jackson — vote together 81 percent of the time, more than any other combination of three justices. They are followed by the three Republican appointees who are said to represent the Supreme Court's moderate wing — Chief Justice Roberts, Justice Kavanaugh, and Justice Amy Coney Barrett — at 75 percent.
But the remaining three justices, often lumped together as the far right of the Supreme Court — Thomas, Alito and Gorsuch — agreed much less than the majority, at 59 percent, undermining the notion of a 3-3-3 Supreme Court and highlighting Gorsuch's independence.
In fact, the justice has voted for the liberal outcome 45% of the time in divided cases, often opposing the government and siding with powerless litigants. Since joining the Supreme Court in 2017, he has voted for the government just 35% of the time, the lowest rate of any justice on the Supreme Court.
When Justices Thomas and Alito were in the majority, Justice Gorsuch did not often join them. More than any other member of the Supreme Court's conservative wing.
In other words, of the three Supreme Court justices appointed by Trump, none are more conservative than Justices Thomas and Alito.
Epstein said Judge Barrett, the third justice appointed by President Trump, is particularly noteworthy. “Several indicators suggest that Judge Barrett is far more conservative than her predecessor, Justice Ruth Bader Ginsburg, but has moved somewhat to the left,” he said. “This term, Judge Barrett has surpassed Justice Roberts as the Republican appointee who has cast the most liberal votes in divisive cases.”
Trump has expressed disappointment in his own choices and, if re-elected, may nominate a more radical justice, perhaps from the Fifth Circuit. The four oldest justices on the Supreme Court are Justice Thomas (76), Justice Alito (74), Justice Sotomayor (70) and Chief Justice Roberts (69).
During Trump's presidency, the Trump administration performed rather poorly in obtaining signature decisions at the Supreme Court in oral argument cases in which the United States, the executive branch, an independent agency, or the president himself was a party, winning just 42% of cases, the lowest rate since at least the Roosevelt administration. In contrast, the Biden administration has won 54 cases. Percent time.
The session that ended on Monday was packed with some of the worst major cases in recent history, and while the court resolved some of them, it ended with a series of earth-shattering explosions.
When the justices return in October, they will be faced with a more conventional caseload, at least for now. Among the cases the Supreme Court has agreed to decide are those involving the care of transgender minors and so-called ghost guns.
There is little reason to think that courts will reach a consensus in these cases.
Galle said the infighting among the justices, particularly the conservative ones, reminds him of a comment made by Justice Oliver Wendell Holmes Jr., who reportedly likened the Supreme Court to “nine scorpions in a jar.”
“Chief Justice Rehnquist once said the job of the Chief Justice was like herding cats,” Galle said, “but to quote Holmes, perhaps a more appropriate analogy today would be herding a colony of scorpions.”