Ever since Justice Anthony Kennedy announced his retirement last year, commentators have prophesied that President Donald Trump’s replacement of that moderate jurist would lead to a conservative majority running roughshod over core liberal concerns. That’s why opposition to the milquetoast establishmentarian Brett Kavanaugh was so fierce, even before the 11th-hour sexual-assault allegations.
Justice Kavanaugh was supposed to have single-handedly overturned Roe v. Wade, but a funny thing happened on the road to apocalypse. Particularly in petition rejections and other procedural votes, Kavanaugh has demonstrated a pragmatic approach. And a term with few big controversies showed the liberals voting together much more than the conservatives.
Legacy:Justice John Paul Stevens exemplified a dignified, reserved Supreme Court.
Liberal justices vote together at high rates
There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the “expected” ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.
That dynamic isn’t something that sprang up in the Trump era or with the court’s newest personnel. In the 2014-15 term, with Kennedy at the height of his “swing vote” power –the last full term before Justice Antonin Scalia’s death and resulting year-long vacancy — the four liberals stuck together in 55 of 66 cases, while the four conservatives (not counting Kennedy) voted as a unit in 39.
Even in 2013-14, when liberals and conservatives voted with their respective coalitions equally (54 times in 67 cases), 42 of those decisions were unanimous and there were only ten 5-4 rulings. In other words, when conservative justices vote together at the same rate as their liberal counterparts, it’s because the entire court is united.
Speaking of politically fraught cases that end up 5-4, it’s notable that there’s never a question of how the liberal justices will vote. Speculation runs rampant over whether one of the conservatives will go wobbly — whether out of unpredictable moderation, minimalistic pragmatism or idiosyncratic theory — but the liberals are guaranteed to please their constituency.
Conservatives side with liberal justices
Most famously, of course, in 2012’s National Federation of Independent Business v. Sebelius, Chief Justice John Roberts transmogrified the individual mandate into a tax to save Obamacare. Roberts did a similar thing twice this past term, in cases regarding the census citizenship question (Department of Commerce v. New York) and judicial deference to administrative-agency reinterpretations of their own regulations (Kisor v. Wilkie).
Gerrymandering decision:Ruling is a constitutional victory.
Such intramural fractures often reveal lively intellectual debates that one rarely sees on the left. For example, Justice Neil Gorsuch has joined the liberals five times in 5-4 decisions, four of them this past term alone — with Gorsuch typically writing for the majority or concurring separately without adopting the liberal reasoning. These have mainly been criminal law cases, where Gorsuch’s originalism shines through to the benefit of criminal defendants in the same way Scalia’s often did — to the surprise of those who weren’t paying attention.
Indeed, Gorsuch is rapidly becoming a libertarian darling even as Kavanaugh steers down the middle of the road. Kavanaugh actually aligned himself as much with Justices Stephen Breyer and Elena Kagan as with Gorsuch. The Trump appointees voted the same less often in their first term together than any other two justices appointed by the same president, going back at least to President John F. Kennedy. Meanwhile, Obama appointees Kagan and Sonia Sotomayor were together in all the 5-4 cases this term.
The Ginsburg Four
In sum, if lockstep voting and a results-driven court concern us, it isn’t the conservatives we should be worried about. While senators, journalists and academics love decrying the Roberts Five, it’s the (Ruth Bader) Ginsburg Four that represent a bloc geared toward progressive policy outcomes. To be sure, a reinvigorated conservative grouping may yet come to dominate the court — especially if Trump fills another seat — but it hasn’t happened yet.
Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. Follow him on Twitter: @ishapiro.