The Supreme Court Had A Few Surprises This Year. That Doesn’t Make It Moderate.

The second full term under the most conservative Supreme Court in modern history concluded last week, with major rulings on affirmative action, President Biden’s student debt forgiveness program and anti-discrimination law. 

The term as a whole wasn’t as dramatic as last year’s, which culminated with the politically and legally seismic decision to overrule Roe v. Wade, one of the most recognized precedents of the last two generations. But initial data from the term makes a couple of things clear. First, the conservative bloc isn’t entirely predictable. The six Republican-appointed justices are still not on the same page about how far or how fast to go when it comes to right-wing priorities, and there are at least a few members of the Republican-appointed bloc who are unwilling to deliver an unbroken slate of wins for Republicans every year. Second, the court is still deeply polarized and the conservatives at the center are in the driver’s seat — which means the conservative revolution that began with Justice Brett Kavanaugh’s appointment in 2018 and accelerated with Justice Amy Coney Barrett’s appointment in 2020 is unlikely to reverse anytime soon. 

In other words — conservatives might be disappointed that they didn’t get everything they asked for this year. But that might say as much about the radicalness of the cases that the court is taking as it does about the justices’ ideology.

One major metric of judicial ideology suggests that the center of gravity on the court is basically unchanged. According to the preliminary Martin-Quinn scores, which measure justices’ ideology relative to each other in each individual term, there’s no single “swing” justice — not even Chief Justice John Roberts, who authored some of this term’s major opinions. Instead, Justices Samuel Alito and Clarence Thomas continue to fall on the rightmost boundary of the court, and the other conservative justices are much harder to distinguish, particularly Roberts and Kavanaugh. Meanwhile, in her first year on the bench, Justice Ketanji Brown Jackson established herself as an outspoken member of the court’s liberal minority, with a scorching dissent in the court’s decision rejecting the use of race-conscious admissions in higher education.

Last term, Roberts and Kavanaugh were divided on the outcome in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade. In his opinion in Dobbs, where he agreed with the decision to uphold Mississippi’s 15-week abortion ban but said he wouldn’t go further, Roberts expressed concerns about the court’s pace. “The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us,” he wrote. Kavanaugh, on the other hand, joined Justice Samuel Alito’s majority opinion, and wrote a concurring one, arguing that the Constitution “is neither pro-choice nor pro-life” and the court should therefore be “neutral” on the issue.

But that example was noteworthy because the two justices are so frequently on the same page. And while Kavanaugh didn’t share Roberts’s concerns about judicial restraint in Dobbs, he did vote with Roberts, Barrett and the liberals this term in one of the major disappointments for Republicans and right-wing advocates, who were pushing the court to embrace a fringe legal theory about the Constitution’s elections clause that could have dramatically reshaped the way elections happen. The two justices also joined the liberals in a major case involving Section 2 of the Voting Rights Act, which will almost certainly have negative repercussions for Republicans.

In fact, according to data compiled by Adam Feldman, a legal scholar and the creator of the website Empirical SCOTUS, and Jake Truscott, a postdoctoral researcher at the C-SPAN Center for Scholarship and Engagement, Roberts and Kavanaugh agreed with each other in 95 percent of cases this term — higher than any other pair of conservative justices.¹

There also were moments when individual or pairs of conservative justices broke from the larger bloc. Justice Neil Gorsuch, for example, joined the liberal minority in dissent in a case involving water rights for Navajo Nation. And Thomas only agreed with Kavanaugh in 73 percent of cases — not that much higher than the 65 percent of cases where he agreed with Democratic-appointed Justice Sonia Sotomayor.

But overall, there was more consensus this year than last year, which may stand out as a historically acrimonious term. According to Feldman and Truscott, there were only five cases with ideological 6-3 splits, compared to 14 last year. There were also more unanimous decisions this term, although it wasn’t an unusually high level of unanimity.

So it may turn out that last year was something of an anomaly for the conservative majority, which isn’t fully on the same page about how to address high-profile cases. But that doesn’t mean the court is moderating, either. All five of the ideologically split decisions had sweeping implications for American life — from the closely watched decision striking down affirmative action in higher education as a violation of the Constitution’s 14th Amendment to the less-followed but still important ruling that put significant limits on the Environmental Protection Agency’s power to regulate wetland pollution. Those decisions show that when the conservative majority is united, they’re continuing to pursue long-held Republican goals, like cutting back the power of administrative agencies and expanding exemptions to anti-discrimination laws.

And the fact that they’re unwilling to give conservatives a win in every case may say as much about what advocates are asking for as it does about the court’s ideological bent. The two big surprises this term — the ruling involving the Constitution’s elections clause and the decision involving the Voting Rights Act — were both cases that previous courts probably wouldn’t have agreed to hear at all. The aggressive arguments in both cases are just two examples of the way the court’s docket is changing, with right-wing legal groups and politicians asking for much further-reaching outcomes than they would have even five or six years ago.

Meanwhile, the liberal justices didn’t find themselves in dissent as much as they did last year — but when they objected, it was bitter. In the affirmative action case, the court’s two Black justices directly called each other out as they argued about the country’s history of racism and the current reality of racial discrimination. In his 6-3 majority opinion about Biden’s student debt forgiveness plan, Roberts criticized the Democratic-appointed bloc’s objections to that case and others, writing that it was unfair for the liberals to say that the conservative majority was “going beyond the proper role of the judiciary.” The liberals, for their part, were unwilling to pull their punches; in a long opinion in the anti-discrimination case that she read from the bench, Sotomayor wrote, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

The dueling opinions were a sign that while consensus is possible to obtain under this Supreme Court, disagreements between the justices are fierce and sometimes even personal. And while the minority is determined to remain outspoken despite the lopsided balance of power on the court, the court’s conservatives are still delivering major victories for the country’s right wing.