Title: Supreme Court FILE – Members of the Supreme Court sit for a new group portrait following the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington, Oct. 7, 2022. Bottom row, from left, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, and Chief Justice of the United States John Roberts. Top row, from left, Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, and Associate Justice Brett Kavanaugh. (AP Photo/J. Scott Applewhite, File) Every June, in an effort to clear its docket before entering the summer recess, the Supreme Court publishes a flurry of decisions. These decisions are not only numerous but disproportionately high-profile and politically controversial.
For example, we recently saw decisions on birthright citizenship, the president’s power to remove Federal Trade Commissioners and members of the Federal Reserve Board, and state bans on transgender athletes in girls’ sports.
No matter the verdict, the justices were sure to gore any number of oxen. Aggrieved parties will renew the perennial charge that the court is legislating from the bench on behalf of partisan interests. Public perception that the court is best understood as a partisan institution is not likely to abate, as recent Pew research polls demonstrate.
Before the hue and cry goes up, it would be good to reflect on the ways in which the Supreme Court is not in fact a partisan institution. I’ll take the opinions issued on June 18 as a starting point.
The court handed down three decisions that day: U.S. v. Hemani, T.M. v. University of Maryland Medical System and Hunter v. U.S. The Second Amendment case United States v. Hemani generated some noise in the news cycle. The rest of these cases you probably didn’t even hear about.
It was a boring Thursday as Supreme Court opinion days go. But boring opinion days are in many ways the most helpful for understanding what the court does, because they are typical of the court’s work.
A perusal of the breakdown in the votes drives home why thinking about the justices as partisan actors and the court as a partisan institution is problematic. The impression is best conveyed by the summary of opinions at the end of the clerk’s syllabus, which lists the author of the opinion of the court and those who “joined” it as well as concurrences and dissents.
In the most politically salient of the cases, Hemani, the court issued a unanimous ruling in favor of the criminal defendant. The opinion of the court was written by Justice Neil Gorsuch and joined by six of his colleagues, some of whom wrote concurrences to emphasize or add additional points. The only two justices who did not join the opinion of the court — Samuel Alito and Elena Kagan — concurred in the outcome but wrote separately to establish a different legal ground for the decision.
The other two cases saw an 8-1 decision with a lone dissent from Justice Thomas and a 5-4 decision in which the majority was composed of Justices Sonia Sotomayor, Clarence Thomas, Brett Kavanaugh and Ketanji Brown Jackson — a mashup of the court’s most so-called conservative and liberal members — with Chief Justice John Roberts and Justices Gorsuch, Kagan and Amy Coney Barrett in dissent.
This is not an outlier. Unanimous or near-unanimous decisions and cross-partisan voting coalitions are the norm on the court. Consider that the share of cases decided by a unanimous court has fluctuated between 50 and 70 percent over recent terms. And when it comes to justices crossing partisan lines to join opinions, consider that the justices who voted together least frequently in the 2024 term — Alito and Jackson — still voted together in 53 percent of all cases.
It is not that these are unimportant or uncontroversial cases. Unimportant cases with obvious outcomes rarely reach the Supreme Court. You can take a tour of the data yourself using the Empirical SCOTUS 2024 StatPack.
Partisanship is not absent from the Supreme Court, but it simply is not the modus operandi of the institution — despite what a good part of the public seems to think — as it is for Congress and the presidency. There is a real and important distinction between the work of judges and the work of politicians.
Politics and law are not different names for the same thing, and judges are principally concerned with the law even if they are not ignorant of politics. If we lose that distinction, we will have lost a constitutive part of what it means to live under the rule of law.
Matthew Brogdon is senior director of Utah Valley University’s Center for Constitutional Studies.
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