“When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the court function and the results in our cases do not suggest otherwise,” said Roberts before hundreds in attendance at the Temple Emanu-El Streicker Center in Manhattan.

Chief Justice John Roberts, Sept 2019.

There are 3 liberal Supreme Court justices: Sotomayor, Kagan and Breyer. As shown above, Justice Breyer is seated to the right of Justice Thomas. Supreme Court Justice Clarence Thomas is a long standing conservative justice. Other conservatives on the bench are: Alito, Gorsuch, Kavanaugh, Barrett, and Roberts. So, the balance of the court is 6-3, in favor of conservatives.

However, the idea that conservatives now control the court has no legs to stand on in the 2020 term. As the Economist article states, as of June 23, of the 50 cases decided in the current term, there have been only four cases of a 6-3 decisions split over ideological lines. There were 24 unanimous decisions.

The 2020 term is coming to an end. I believe there are just 5 more decisions before the court takes their summer break. The more contentious case often come at the end of the term. The HollyFrontier Cheyenne Refining case was decided on June 26, and it clearly supports what Roberts said, that the justices will decide based on the law and precedent, and not which political party supported their nomination. The case was decided 6-3 but the majority opinion was written by Justice Gorsuch, a conservative, and the dissent was written by Justice Barrett, another conservative. Joining Justice Gorsuch was Justice Breyer, a rock solid liberal on the court. Joining Justice Barrett, were liberal judges, Sotomayor and Kagan.

A New Yorker article entitled, “The Supreme Court surprising term” as published yesterday, states, “the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.” I’m not so sure that was the motivation. They recognize the immediate impact their decisions have on every court in the country and this supersedes politics.

The conservatives and liberals have different philosophies on interpreting the law. I don’t think any of the justices has really altered their general philosophy. Conservatives adhere more to the Constitution as written, and are less willing to take an expansive interpretation of the constitution. They can still arrive at the outcome, but with different reasoning. Judgement and and dissents of the court are much more powerful, when supported by both conservatives and liberals.

So, ironically, as our political parties seem to become more polarized, with opposing views on just about every issue, the Supreme Court is finding common ground and this is good. Yes, Republicans nominate conservatives and Democrats nominate liberals. The very good aspect of the approval process, is that we have a Supreme Court, with some of the top legal minds in the country, through their education and experience.

Conservatives and liberal justices joined in the denial of the challenge to Obamacare, probably the case with the greatest immediate impact and highly controversial between Republicans and Democrats. The majority ruled the merits of the case should not be considered, because there was lack of standing, based on no showing of real harm to the States. Justice Alito wrote a strong dissent to the majority.

What keeps the Court out of politics? The Court has nine independent justices, and each gets one vote, including the Chief Justice. In the case of eight justices, the Chief Justice does not break the tie. A tie means the lower court decision holds. So, I believe giving the Chief Justice no special privileges has been one way the court has kept out of partisan politics. The President might call up the Speaker of the House, when the Republicans were in the majority and say he wants certain legislation passed. Doesn’t work at the Supreme Court. Our founding fathers wrote in the Constitution that the Supreme Court judges would have lifetime appointments, so this keeps them out of the political fray.

I think it is also a tribute to John Roberts and other members that has resulted in conservatives agreeing with liberals and vice-versa. Yes, conservatives tend to agree more often with each other than with liberal members. But, this agreement isn’t consistent enough to predict cases.

Which justices cross over and join with the other side? I think this term, the answer is pretty clear. Every single one of them! Breyer joining with Barrett on one case, Sotomayor and Kagan joining with a dissent written by Thomas in another case (TransUnion Credit Case). How nice!

Links:

Economist: The 3-3-3 court: America’s Supreme Court is less one-sided than liberals feared

The Supreme Court’s Surprising Term

Scotus Blog