From Kalvis Golde
on May 13, 2021
at 11:59 a.m.
This article is the first in a series of interim statistics from the 2020-21 Supreme Court tenure.
The Supreme Court has issued opinions about half the times it will rule that term, and so far Judge Brett Kavanaugh has emerged as the new “middle judiciary” of a solid conservative court. If the trend continues, Kavanaugh will replace Chief Justice John Roberts, who occupied the court’s ideological center prior to the shift to the right caused by the death of Judge Ruth Bader Ginsburg and her quick replacement by Judge Amy Coney Barrett last fall.
Kavanaugh’s position, as well as a number of other initial trends listed below, is based on data from the 31 merit opinions the court has issued so far during the 2020-21 term. The data set consists of all statements made in disputes, two unsigned statements that provide emergency aid for the shadow protocol, and several “summary inversions” (unsigned statements in which the court granted a request for review and a lower court granted without an oral hearing undone). . The dataset excludes one case that was dismissed as “improvised approved” and a large number of shadow judgments that lacked a formal merit opinion.
The court is expected to deliver 33 additional opinions during this tenure, including on highly competitive cases involving the Affordable Care Act, Access to Ballot Paper, and a conflict between religious freedom and LGBTQ rights. The trends identified here could change by the end of June. (As always, at the end of the term we will be releasing a comprehensive statistical package with detailed final statistics.) However, the following data gives a preliminary picture of the court’s decision-making in the first year of the new Conservative majority with six judicial authorities.
For the last term in office, the commonly agreed story was the 97% frequency of Roberts in most decided cases. The chief was widely portrayed as the middle judiciary of the court and, in closely-divided cases, exercised significant influence as a member of the conservative wing most willing to vote with the liberal judges. However, the balance of the court shifted after Ginsburg’s death and Barrett’s confirmation.
The majority frequency in this term seems to be history again, but this time it is Kavanaugh who sits at the nexus of judgment. It currently equates to Roberts ‘97% majority rate from the last term in office, while Roberts’ majority rate has dropped to 87%. Kavanaugh has cast key votes on a number of highly competitive cases during this tenure – most notably in two Shadow Protocol rulings that lifted COVID-19 restrictions on worship (both of which caused Roberts to disagree). Kavanaugh also joined the other Conservatives (this time including Roberts) in drafting the majority opinion on one case on the constitutionality of sentencing juveniles to life without parole. He (along with Roberts) joined the three Liberals in deciding what constitutes a “seizure” after the 4th Amendment.
In a sign of President Donald Trump’s deep influence on the court, all three Trump-appointed people – Kavanaugh, Barrett and Justice Neil Gorsuch – were in majority more often than any other judiciary during this tenure. And it’s no surprise that the majority of judges are the least likely to be the only three members of the court appointed by Democratic presidents: Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor. However, each of them was in a majority in more than two-thirds of the trials during that tenure – evidence that many decisions are not ideologically divided.
The ideological orientation is evident in the examination of the agreement of the judges with one another. The graph above shows the six pairs of judges with the highest voting rates combined and the six pairs of judges with the lowest matching rates. Three of the top six couples are Barrett – so far she has voted alongside Gorsuch and Justice Clarence Thomas in every case she has participated in, and she has agreed with Justice Samuel Alito 95% of the time. (Barrett’s sample size is smaller than the other judges, however. Of the 31 cases in our dataset, she did not participate in 10 that were discussed prior to joining the bank and two others that were ruled without argument immediately after being appointed .)
The Liberal judges agree similarly: Breyer voted with Sotomayor and Kagan 97% of the time, and Sotomayor and Kagan voted together 94% of the time. On the other hand, the couples who are least in agreement are made up of judges who are least ideologically oriented.
If we break down the cases decided by vote split, we see two trends. First, more than half of previous decisions have been made unanimously. This is slightly above the 48% average over the past decade (although unanimity often falls towards the end of the term as decisions split take longer to be published). Judges often emphasize the tendency of the court to rule cases unanimously when asked about the view that the court is divided according to partisan standards.
Nonetheless, non-unanimous cases are likely to be closely separated (i.e., they will be decided by either 6-3 or 5-4 votes) and are likely to produce conservative outcomes. We define a case as Conservative when the majority is made up entirely of Republican-appointed judges, and we define a case as liberal when the majority is made up of all three Democratic-appointed judges with two or three crossover votes of Republican-appointed persons . (To date, no closely-divided case has split the three Democrat-appointed judges – either all three were in a majority, or more often, all three disagreed.)
Though the breakdown of tight partisan result cases under the Roberts Court has varied widely, the majority of tight rulings since Kavanaugh’s replacement of Judge Anthony Kennedy, long viewed as the court’s “swing vote” in 2018, has had a conservative outcome. This pattern continued this term. A number of key decisions, from the previously mentioned life without parole and COVID-19 cases, to the government’s efforts to exclude people living in the country from the 2020 census without authorization, or to limit the facilitation of deportation for a minor crime, were made with Conservative majority with all three liberal judges in contradiction.
One final measure under consideration at this point is the number of opinions issued by each judiciary. As in previous terms, Roberts and Kagan wrote the fewest overall opinions. Both seldom write concurring opinions, and when they disagree, they are more likely to join a dissenting opinion drawn up by another judiciary than to write one themselves. (Of Roberts’ two dissenting opinions on the term, one was a solitary contradiction in a case about student speech that got to the heart of what claimants must allege to bring a lawsuit for violation of a constitutional law in federal court for the first time the boss was the only dissident in an 8: 1 case since joining the bank in 2005.)
Sotomayor and Thomas, on the other hand, are the most prolific authors of consensus opinions of the court and are similarly prone to dissenting. As usual, they are at the top end of the number of opinions written so far. Breyer has also written a large number of opinions. He is a frequent dissident in general (Ginsburg was “more notorious” of the liberal judiciary for its dissidents, although this was generally due to their linguistic power as opposed to their sheer number), and he has authored a majority of the dissenting opinions of liberal judges This term was decided in cases 6-3 on the basis of ideological considerations.