Courts

Charting The Justices’ Decisions Cutting Across Ideological Lines

Will the current Court be able to shed its stereotype of an ideological body with a strong conservative bent?

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cartoon The Supreme Court architecture

Supreme Court decisions come down to coalitions and are often predicated on the question of whether a justice can garner at least four additional other votes to support their position in a case. Sometimes these coalitions are easy to come by. The Court decides somewhere around 33% or more of its cases on average per term by unanimous 9-0 votes.  The number of unanimous votes diminishes though as each Supreme Court term progresses from start to finish.

A main area that tends to divide the justices along ideological lines is cases that deal with individual rights. Oftentimes such cases come out as predicted. Most commentators last term saw the writing on the wall for affirmative action before the Court overturned its 2003 decision in Grutter v. Bollinger which established guidelines for affirmative action programs.  Similarly, one term prior many Court watchers expected the Supreme Court to overturn Roe v. Wade within a short time after the Court granted cert to review Roe in Dobbs.  These cases divided the Court along ideological lines, 6-3 in Students for Fair Admissions v. Harvard and either 6-3 or 5-4 in Dobbs depending on whether you read Roberts’s concurrence as a vote with the majority or as a dissent stylized as a concurrence that argued against the Court overturning Roe.

These types of decisions have become the expectation for many as a significant number of the Court’s most anticipated decisions in recent years have divided the justices along ideological lines.  This brings up two issues. One is more of a coding question as with the Dobbs decision: how should group the justices’ votes in groups if they don’t neatly fit into binary bins? This question is raised by a handful of cases each term.  The second issue is whether this trope on ideological decision-making obfuscates the camaraderie among the justices that cuts across ideological lines.

It’s Complicated

To define coalitions, we need to have some systematic way to group justices. The problem is that things are not often that easy. Secondarily, even when justices are coded as belonging to the same coalition, they may very well not share the same view regarding the reasoning that should lead to the case outcome or of the implications of the decision.  A clear example of this is in the Court’s decision this term in Trump v. Anderson.  Even with suggestions that the case was initially decided with dissents, the final vote count was 9-0 in favor of overturning the Colorado Supreme Court decision attempting to remove Trump from presidential ballots within the state.  Justice Sotomayor’s concurrence focusing on how the Court could have avoided defining Congress’s power under the 14th Amendment Section 3 clearly takes a different approach from the majority’s about what the decision means for Congress’s power in this area moving forward.

The complexity of understanding unanimous decisions is an avenue of scholarly study, suggesting there is more to unpack than meets the eye.  Experts’ understandings of recent cases highlight the difficulty in defining coalitions. Two of the most widely used Supreme Court decisions trackers, Oyez and SCOTUSBlog, often have different reads of vote breakdowns.  In the 2022 decision in Sackett v. EPA, SCOTUSBlog codes the decision as 9-0 (so does the U.S. Supreme Court Database) while Oyez lists it as a 5-4 decision.  Partial concurrences and other votes that join the majority in part but either take a different view on the road to the outcome or dissent in part create hurdles for clearly defining when the justices’ votes parallel one another.  Without going deeper into this subject, the votes coded for this article come mainly from the United States Supreme Court Database, which brings in some subjectivity on how congruent votes are defined, as individuals outside of the Court itself decide on the direction of the justices votes on a binary scale.

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Surprises

While the justices often vote across predictable lines, less predictable individual votes often get overshadowed by decision outcomes that come down as predicted.  There are, however, some exceptions.  Both commentators on the left and on the right appeared surprised by both the Court’s decision and the vote breakdown in Allen v. Milligan, which struck down an Alabama districting plan as racially gerrymandered.  The Court had, as many noted, ruled that political gerrymandering was a political question outside of the hands of the justices just a few years earlier in Rucho v. Common Cause.  Justices Roberts and Kavanaugh, who were both in the majority in Rucho also voted in the majority with the liberal justices in Milligan.

The vote in Milligan raised eyebrows because it went against much of the conventional wisdom surrounding the current Court that the conservative justices would vote as a bloc on cases relating to individual rights.  The remainder of this article looks at coalitions from the perspective of more conservative justices joining the ranks of the more liberal justices starting with those who have shown greater propensity to shy away from the liberal justices.

Justice Alito

Justice Alito is the only justice who hardly ever crosses the ideological divide in decisions by close votes.  He’s also the only conservative justice on the Court never to join a group of all of the liberal justices in a 5-4 decision.  Underscoring this point, Alito has never been in a 5-4 majority with both Justices Sotomayor and Kagan since Kagan joined the Court in 2010 (these are the only two liberal justices who have remained on the Court since that term). The closest Alito ever got to this was with his concurrence in Gundy v. United States, which some called a dissent shrouded as a concurrence. Gundy was decided by a 5-3 vote with Kagan, Ginsburg, Breyer, and Sotomayor in the majority, Alito concurring, Roberts, Gorsuch, and Thomas dissenting, and Kavanaugh recusing.  Alito’s concurrence read like a dissent because he essentially said he disagreed with the majority but the dissenting position didn’t have sufficient votes to define the rule of law (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”)

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Alito has, however, joined majority and dissenting coalitions in close cases with some of the liberal justices.  For instance, Alito dissented along with Sotomayor three times in 5-4 decisions: in Goldman Sachs v. AK Teachers Retirement System (although they partook in separate dissents), Hollingsworth v. Perry, and in Scialabba v. Cuellard (where they also dissented separately from one another).  Alito and Sotomayor also shared the same majorities six times in 5-4 decisions: in Yates v. United States (along with Justices Ginsburg, Breyer, and Roberts), Dart Cherokee v. Owen, Comptroller of Treasury v. Wynne, Hall v. United States, Mallory v. Norfolk (coded 5-4 by SCOTUSBlog and 6-3 by Oyez), and PennEast Pipeline v. New Jersey.

Shifting the focus to the other liberal justices, in their first year on the Court together, Alito and Jackson were in 5-4 majorities together in both Mallory v. Norfolk and in Bittner v. United States. This is already one more 5-4 majority than Alito shares with Kagan (the one they share is Paroline v. United States). Alito also shares a 5-4 dissenting coalition with Kagan in Florida v. Georgia.  Justice Jackson similarly shares one 5-4 dissenting coalition with Alito from last term’s decision in National Pork Producers Council v. Ross, which actually showcased quite a complex web of different positions from the justices.

Alito has yet to share a dissent in a 7-2 decision with any of the Court’s liberal justices. Prior to Jackson and since Kagan joined the Court in 2010, Alito also did not dissent with Breyer in a 7-2 decision and only did so once with Justices Ginsburg, in Fowler v. United States.

The graph below shows the number of times Alito joined the following coalitions in 5-4 decisions.

The data from the graphs for Alito and the rest of the conservative justices were transformed into a score as explained below.

Scoring: If we take the count of pairings with Alito and Jackson, Kagan, or Sotomayor, and remove duplicated cases the sum is 13. If we divide it by the 13 terms between 2010 and 2022 we get a score of 1.

Justice Thomas

For all of the conversation about Justice Thomas as potentially the most conservative justice on the Court, Thomas has crossed the ideological threshold in closely divided decisions far more often than Justice Alito even when we discount Thomas’s tenure on the Court that preceded Justice Alito’s.  Thomas joined 12 5-4 majorities with Sotomayor and Kagan since Kagan joined the Court in 2010 including four with all four liberal justices on the Court before Justice Ginsburg passed away.  The bulk these decisions were in criminal cases (five of them) like in Alleyne v. United States where Thomas was the majority author.

Thomas joined four 5-4 dissents with both Kagan and Sotomayor including one with Justice Jackson: last term’s decision in Coinbase v. Bielski looking at motions to compel arbitration in the context of cryptocurrency.  Like Alito, Thomas has not dissented with a liberal justice in a 7-2 decision, however, other important 5-4 cases with Thomas, Sotomayor, and Kagan in dissent include TransUnion v. Ramirez (about Article III standing) and United States v. Arthrex (dealing with patent judges).

The graph below shows the number of times Thomas joined the following coalitions in 5-4 decisions.

Scoring: If we take the count of pairings with Thomas and Jackson, Kagan, or Sotomayor, and remove duplicated cases the sum is 26. If we divide it by the 13 terms between 2010 and 2022 we get a score of 2.

Justice Gorsuch

Justice Gorsuch has been a frequent ally of the liberal justices in closely divided cases mainly in two areas: criminal and indigenous law cases.  In total, Justices Gorsuch, Kagan, and Sotomayor shared 12 5-4 majorities since Gorsuch joined the Court in 2017 (the same number as Justice Thomas in less than half of the time).  These include four civil/indigenous rights cases: Herrera v. Wyoming (with Gorsuch, Ginsburg, Breyer, Soto, Kagan in the majority), McGirt v. Oklahoma (with the same majority composition), Washington State Dept. of Licensing v. Cougar Den (Gorsuch, Soto, Kagan, Ginsburg, Breyer), and Ysleta Del Sur Pueblo v. Texas (Gorsuch, Breyer, Soto, Kagan, Barrett).

Gorsuch and Sotomayor shared seven 5-4 dissents since 2010 including four in criminal cases.  One of these 5-4 dissents included Justices Kagan and Jackson as well in Arizona v. Navajo Nation (another indigenous rights case). Gorsuch has yet to join a 5-4 dissent with Justices Sotomayor, Kagan, and Jackson though.

Unlike Justices Thomas and Alito (as well as Justices Kavanaugh and Barrett) Gorsuch shared a 7-2 dissent with a liberal justice: with Justice Sotomayor in the patent case Thryv v. Click to Call where none other than Justice Ginsburg was the majority author.

The graph below shows the number of times Gorsuch joined the following coalitions in 5-4 decisions.

Scoring: If we take the count of pairings with Gorsuch and Jackson, Kagan, or Sotomayor, and remove duplicated cases the sum is 23. If we divide it by the 6.2 terms between the end of the 2016 term and 2022 we get a score of 3.71.

Chief Justice Roberts

Many thought that Chief Justice Roberts would be the new swing justice on the Court after Justice Kennedy’s retirement and with the addition of Justice Kavanaugh to the Court.  That assessment quickly shifted after Justice Ginsburg passed away and Justice Barrett joined the Court in 2020.  While Roberts is often seen as more conservative than the previous swing justice, Justice Kennedy, and more as a Court median than a swing justice, he played the role of swing along with Court’s liberal justices in several key cases both before and after Justice Kennedy’s retirement.  Since 2010 this included three instances with Justices Breyer, Sotomayor, Kagan, and Ginsburg, and nine times with Justices Kagan, Sotomayor, and Breyer.  This count goes up to 16 5-4 majorities with Justices Kagan and Sotomayor.  If we focus on such decisions since Kavanaugh joined the Court in 2018 (11 of them), the most, three, looked at civil liberties issues. These include the aforementioned Allen v. Milligan as well as Biden v. Texas and DHS v. Regents of the U.C.

Roberts was also in three 5-4 dissents with three of the Court’s liberal justices since 2018: in Mallory v. Northfolk Railroads, South Dakota v. Wayfair, and Stokeling v. United States. Roberts was in one 5-4 dissent so far with Justice Jackson in National Pork Producers Council v. Ross.  Like Gorsuch, Roberts shared one 7-2 dissent with a liberal justice: with Justice Kagan in the copyright case of Warhol Foundation v. Goldsmith.

The graph below shows the number of times Roberts joined the following coalitions in 5-4 decisions.

Scoring: If we take the count of pairings with Roberts and Jackson, Kagan, or Sotomayor, and remove duplicated cases the sum is 34. If we divide it by the 13 terms between the end of the 2010 term and 2022 we get a score of 2.61.

Justices Kavanaugh and Barrett

The Court’s newest conservative justices, Trump’s appointees – Justices Kavanaugh and Barrett – have already made inroads with the Court’s liberal justices in closely divided cases.  Barrett has shared majorities in three 5-4 decisions with Justices Kagan and Sotomayor: in Becerra v. Empire Health, Ysleta Del Sur Pueblo, and National Pork Producers. She has yet to join a 5-4 majority though with Sotomayor, Kagan, and Jackson nor has she dissented in a 7-2 decision with any of those justices.

Justice Kavanaugh, often described as the Court’s current median justice, shared six 5-4 majorities with Justices Kagan, Sotomayor, and Breyer between when he joined the Court in 2018 and Justice Breyer’s retirement in 2022 as well as two decisions with Justice Jackson in Breyer’s place (in Allen v. Milligan and Cruz v. Arizona. Like Justice Barrett, Justice Kavanaugh has also not shared a 7-2 dissent with any of the Court’s liberal justices.

The graphs below shows the number of times Kavanaugh and Barrett joined the following coalitions in 5-4 decisions.

Scoring: If we take the count of pairings with Kavanaugh and Jackson, Kagan, or Sotomayor, and remove duplicated cases the sum is 13. If we divide it by the 5 terms between the 2018 term and 2022 we get a score of 2.6.

Scoring: If we take the count of pairings with Barrett and Jackson, Kagan, or Sotomayor, and remove duplicated cases the sum is 7. If we divide it by the 3 terms between the 2020 term and 2022 we get a score of 2.3.

Concluding Thoughts

Based on the conservative justices’ scorings above, the following chart depicts the justices in order of their bridging alliances with the liberal justices from most to least.

While headlines tend to focus on the Court’s ideological divisions (as does the public’s perception), the data shared above highlight that there is more to the story.  Scholars like Josh Fischman and David Law present a more nuanced picture of judicial ideology as something more than a left-right spectrum with which we tend to measure the positions of members of the elected branches of the federal government, positing that judicial ideology may in fact be multidimensional.

Clearly the justices uphold the moniker of a highly divided conservative body with their decisions in key cases like Dobbs and Bruen, but the justices’ voting coalitions, even in highly divided, divisive decisions, often show something more.  Recently Justices Barrett and Sotomayor, hailing from opposite ends of the Court’s ideological spectrum, sat down and highlighted the importance of civility among the justices, even when they do not share the same viewpoints. Many of the examples above showcase these decisions that cut across the justices’ ideological divide. While we will surely see more decisions breaking the Court down as the 6-3 body that many expect, we will also see more decisions that circumvent this type of ideological schism.  Will the current Court be able to shed its stereotype of an ideological body with a strong conservative bent? While this is unlikely, recent signs of the Court’s moderation hint at the possibility that the Court might not continue to be as conservative as it presented itself during the 2021 Supreme Court Term.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on X/Twitter and LinkedIn. He’s also on Threads @dradamfeldman and on Bluesky Social @dradamfeldman.bksy.social.

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