Why we might have misunderstood the balance of the US Supreme Court?
It has been commonly argued that the US Supreme Court is ultra conservative, with a 6-3 conservative/liberal majority. However, recent analysis done by Sarah Isgur and Dean Jens of Politico have suggested that there is perhaps a more interesting way to look at the current alignment of the court. They have argued that a better representation of the court is not 6-3 but in fact 3-3-3.
The fascinating graphic below helps to explain why Isgur and Jens mean by this.
Firstly, the graph reaffirms once again that the Supreme Court is not as ideologically divided as most people think. The most liberal justice on the court, Sonia Sotomayor, actually agreed with the most conservative justice, Samuel Alito in 63% of cases. In fact, far from being ideological, only 5 of the 57 cases (8%) decided in the 2022-23 term were 6-3 decisions along ideological lines.
Perhaps the most revealing aspect of the chart is focused on the three more centrist (or swing) justices, John Roberts, Brett Kavanaugh and Amy Comey Barrett. The Chief Justice, John Roberts, who was selected by a Republican President and widely perceived to be a conservative justice actually agreed with the liberal justice, Katanji Brown Jackson as often as he did with the conservative Samuel Alito.
A really good example of this division was seen in Griffin v. HM Florida-ORL in 2023 whereby the court determined 6-3 that Florida could not ban drag performers. In this case, our three most conservative justices agreed that Florida could ban drag performer whilst our three most liberal justices said that Florida could not. The three centrist justices partially agreed with both sides but said that the case presented was too far ranging and the court shouldn’t get involved, at this point.
This is a good summary of the position of the three centrist justices and particularly of the Chief Justice, John Roberts. Roberts believes that the integrity of the court must be preserved at all costs and a court that consistently finds in the favour of conservative positions might lose this. Roberts believes in judicial restraint, believing the court should give way to the elected Congress where possible. This was a position summed up in the landmark Dobbs v Jackson (2022) case which overturned Roe v Wade and removed the protections on a woman’s right to an abortion. Roberts argued that abortion was not a constitutionally protected right BUT said that he did not believe the court should overturn Roe. Unfortunately for Roberts, on this decision, the other two centrist judges did not agree.
With this in mind, whilst it is wise to say that the court is conservatively weighted, such a view does neglect the more complex legal positions take by Justices Roberts, Kavanaugh and Barrett.
