The mainstream media has been pushing the narrative of the virtual illegitimacy of the Supreme Court owing to its 6-3 conservative-liberal split, with very targeted attacks on Justice Clarence Thomas and to a lesser degree Justices Alito and Kavanaugh. There is no doubt that the new 6-3 conservative majority has been consequential, overturning a number of longstanding but constitutionally questionable laws which were popular on the left.
But do the justices work political agendas, left or right? Naturally, consistent practitioners of one judicial philosophy or another, principally textualism or originalism, will possibly end up with a left or right skew, but certainly not necessarily. And people are rarely 100% consistent applying anything, especially abstract ideas such as textualism or originalism.
Donnelly and Leib look at the numbers for an answer. If all justices were consistently voting on an ideological basis, we ought to see an awful lot of 6-3 cases. That is not what we see.
The Dobbs and the affirmative action cases are among the relatively small number of primarily constitutional cases before the court each term. The others are among the much larger side of the docket primarily about the interpretation of acts passed by a legislature.Broadly, these cases have come to define the Supreme Court for Americans who now see it as overly politicized and question its legitimacy. The cases often affect millions of people and, as with the Dobbs decision, touch deeply held convictions.But the ideologically charged opinions are not the only cases the Supreme Court decides. It might surprise many people to know that in a majority of the cases the court hears, liberal and conservative justices frequently come together on the decisions. Looking closely at a major portion of the court’s past few dockets — in cases that also affect millions of people — tells a different story about its work.In short, the Supreme Court operates much more functionally and consensually across its partisan divide than most people realize — and that fact ought to figure into how Americans judge a court that often gets caricatured.
Judged by a close look at the opinions of recent terms, the Roberts court is closer to a 9-to-0 court than it is a 6-to-3 court.In recent research, we isolated 87 statutory cases — cases that interpret laws rather than the Constitution itself — from the Supreme Court’s last three terms. We did not study the so-called shadow docket of unsigned and mostly unexplained orders. Instead, we carefully read a set of cases that one might predict would divide the justices because of their methodological and ideological commitments: They all involve not merely the application of case precedent but also the interpretation of text passed by a legislature. With so much ink spilled on a small number of constitutional cases and the presumption that conservative and liberal justices actually read laws differently, we wanted to take a careful look at what is actually the most common type of case.What we discovered cuts against the view, held by many, that the court is irredeemably political. Of those 87 cases, 37 percent were decided unanimously. If you add to that consensual pile any case that has only one member of the court refusing to sign the majority opinion, you get nearly half of the cases (40 out of 87).[snip]To summarize, 77 out of 87 cases primarily involving ordinary statutory interpretation had conservatives and liberals voting together in a majority (and sometimes together in dissents, too).[snip]There is no doubt that if the court were skewed 6 to 3 in the other direction, some cases would come out differently. But the overwhelming majority of cases would be much as they are today: with liberals and conservatives voting together with eclectic methodologies to generate resolutions to the nation’s cases and controversies.
If the study is accurate, then most of the provocative mainstream media headlines about the partisanship and division of the Supreme Court end up appearing to be simple propaganda to undermine one of the three branches of government.
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