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The Senate confirmation of Judge Ketanji Brown Jackson as the 116th associate justice of the United States Supreme Court has prompted predictable handwringing from conservatives. It’s no different than the angst among liberals over the nomination of now Justice Amy Coney Barrett.
But does the balance of power among conservative and liberal justices make that much of a difference?
The answer to that question is both no and yes.
First, Jackson’s confirmation won’t change much on the court, as its current philosophical split will remain the same, with six conservative justices (John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Barrett) and three liberals (Sonia Sotomayor, Elena Kagan, and Jackson).
Second and most important, against conventional wisdom, the justices agree far more often than they disagree.
Because of the contentious nomination processes of the past few decades, many have been led to believe that the justices always vote in lockstep according to their politics, and that the court is bitterly divided, with cases usually decided by a 5-4 or 6-3 vote.
In fact, the opposite is true.
In a study of 80 years of SCOTUS decisions by The Supreme Court Database at Washington University in St. Louis School of Law, as reported by The New York Times, unanimous 9-0 rulings were the most common result, in almost 4 out of 10 cases. Add in 8-1 and 7-2 decisions and near consensus existed in almost two-thirds of all cases.
Courtesy: The New York Times.
Surprisingly, according to that database and ABC News analysis, justices have recently been agreeing with each other even more often. ABC found that 67% of the court’s opinions for the term ended in June, 2021, were decided by unanimous or near-unanimous votes where only one justice dissented.
Of course, that still leaves a third of cases where the court was more fractured. But, even there, the split in the votes was surprising.
Of the 28 more divided decisions, the three liberal justices were the majority on 13 of them, having convinced at least two conservative justices to join them.
So, Is the Court Not Polarized?
None of that, however, means that the court isn’t divided. The tight decisions, made among ideological lines, are often in the most important cases, the ones where the court exercises its power in ways that can significantly change American society and the way we live.
Those cases can even determine who the president of the United States will be, as we saw in Bush v. Gore in 2000. In that case, the 5-4 conservative majority put an end to recounting votes in Florida, effectively confirming George W. Bush’s election as the 43rd American president.
In the current term, if the political philosophy of the justices were to inform their judicial decision-making, it could have far-reaching consequences in cases involving abortion rights, gun rights, and school funding, among others.
Even then, though, it’s impossible to predict how the justices will rule.
The court’s last full term in 2020-2021 provides ample evidence of that. Despite its 6-3 conservative majority, the court rebuffed former President Trump’s attempts to overturn the 2020 election results, and also granted a New York prosecutor access to Trump’s tax returns. That’s even though Trump was responsible for elevating three of the justices to the court.
More important, in a 7-2 decision, it again ruled to keep the Affordable Care Act intact, despite Trump’s opposition to it.
On the other hand, the conservative majority handed down 6-3 defeats to the liberal positions in major cases involving public sector union rights, campaign finance disclosure laws, and the ability of minorities to challenge laws they believe discriminate against them under the Voting Rights Act.
One final point many may find surprising: Studies have found that liberal justices vote in lockstep more often than conservatives.
What Do Americans Think About the Court?
As someone who graduated from law schools in two countries, I’ve always had deep respect for the U.S. Supreme Court, not only as the highest court in this land, but as a shining example for jurisprudence around the world.
The court has traditionally also had a far higher approval rating among the American public than Congress and the president, according to Gallup. Given their low approval ratings, that isn’t saying much, but a majority of Americans has approved of how the court handles its job for most of this century.
Courtesy: Gallup.
Not anymore. In a September 2021 Gallup survey, only 40% of Americans approved of the court, a 21st century low.
A separate Marquette University poll also showed plunging approval for the court, especially among Democrats and Independents. Support dropped from 66% in September 2020 to 49% in September 2021.
Is There Any Good News for the Court?
The Marquette survey still shows a huge gap in the court’s favor when it comes to Americans’ trust in the separate branches of power, as you can see in the table below.
Courtesy: Marquette University.
Also according to the Marquette poll, a majority of the American public believes that the justices base their decisions mainly on the law and not on politics, by a 61%-39% margin.
Let’s hope that faith is well-founded.
To conclude by stating the obvious: The court is an essential part of the American republic, and confidence in its rulings is crucial.
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Cover photo: U.S. Supreme Court Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Brett Kavanaugh and Elena Kagan, along with U.S. Army Chief of Staff General James McConville and U.S. Marines Chief of Staff General David Berger applaud retiring Supreme Court Justice Stephen Breyer as Breyer is honored by U.S. President Joe Biden during the State of the Union Address during a joint session of Congress in the U.S. Capitol’s House Chamber March 1, 2022, in Washington, DC. Biden nominated Judge Ketanji Brown Jackson to take Breyer's seat. (Evelyn Hockstein/Getty Images)