U.S. Supreme Court

SCOTUS in review: Kavanaugh is the median; Barrett, consensus justices play 'the long game’

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SCOTUS new group photo

The U.S. Supreme Court as composed Oct. 27, 2020, to present. Photo by Fred Schilling via the Supreme Court website.

What are the takeaways from the most recent U.S. Supreme Court term? Several Supreme Court journalists are answering that question in stories that look at split decisions and consensus, the likely median justice and the justices most to the right.

Here are some of the conclusions:

• Justice Amy Coney Barrett appears to be “on the same ideological wavelength” as conservative justices making up the court’s new center: Chief Justice John G. Roberts Jr. and Brett M. Kavanaugh, according to Reuters.

Barrett, who was in the majority 91% of the time, has “moved the Supreme Court’s center of gravity further to the right this term but not as quickly or as dramatically as her supporters had hoped or her detractors had feared,” the Washington Post reports. Several justices have described Barrett as a congenial colleague. (Reuters, the Washington Post, NPR)

• The court’s conservative supermajority managed to achieve consensus with liberal justices by deciding very little, according to NPR. The court upheld the Affordable Care Act by ruling that challengers had no standing, ruled for a Snapchat-cussing cheerleader while allowing that schools could punish some online speech, and issued a narrow ruling for a Catholic foster care agency that refused to consider LGBTQ couples. (NPR)

• On the Supreme Court’s last opinion day, conservatives held sway with decisions making it easier to challenge restrictive voting laws in Arizona and protecting charitable donors from disclosure. The donors disclosure case “appeared to lay the groundwork for overturning election disclosure laws,” according to NPR. (NPR, Slate)

• Kavanaugh is the court’s ideological median justice this term, voting with the majority with a 97% frequency. Previously, Roberts had that position. (SCOTUSblog, FiveThirtyEight)

• Conservative Justices Clarence Thomas and Samuel A. Alito Jr. were least likely to agree with the other justices. (FiveThirtyEight)

• The Supreme Court’s six-justice conservative supermajority has attracted a lot of attention, but only six decisions split 6-3 along ideological lines last term in argued cases with signed majority opinions.

The court’s three liberal justices—Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor—were in the majority in 13 of 28 divided opinions. The justice who most often joined those decisions was Kavanaugh, joining 11 of the 13 cases. Next came Barrett (joining seven of 10 decisions with the liberal justices), Roberts (nine out of 13), and Justice Neil M. Gorsuch (eight out of 13). (The New York Times)

• The court issued 9-0 or 8-0 decisions in 29 cases. The split was 6-3 or 5-3 in 16 cases. Barrett’s vote was decisive for conservatives in four cases, including two decisions for religious groups challenging COVID-19 policies. (This analysis included more cases than the New York Times. The data included 57 decisions in argued cases, eight summary reversals and two unsigned decisions granting emergency relief. Cases that granted or denied relief in unargued cases without an opinion were excluded from the data.) (SCOTUSblog)

• The next term will likely have more blockbuster cases, with challenges to Roe v. Wade and concealed-carry gun restrictions. Justices more frequently in the middle—Roberts, Kavanaugh, Barrett and sometimes Gorsuch—are playing “the long game,” according to Slate. “This term, they began to set the table. But apart from [the case upholding Arizona voting restrictions], the cases were appetizers. The main course will arrive in the coming years.” (NPR, Slate)

• Although many opinions showed consensus this year, “a look just below the surface reveals deep fissures,” according to Adam Winkler, a professor at the University of California at Los Angeles School of Law, writing at the Washington Post. There was “plenty of ideological animosity and division,” for example, on the court’s “shadow docket” of orders and summary opinions issued without oral argument. In those cases, the court shot down pandemic voting accommodations, ruled for religious challenges to COVID-19 restrictions, and turned down every challenge to the federal executions. (The Washington Post)

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