Robert Tester, DCNF
The New York Times editorial board claimed recently that there’s “essentially no overlap” in the way conservative and liberal justices vote on the Supreme Court.
The Supreme Court issued unanimous decisions nearly 40 percent of the time during the latest term, and seven out of nine justices voted together in a typical case.
President Donald Trump recently nominated federal appeals court judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court.
TheNYT expressed concern over the nomination, as Kavanaugh would likely cement a conservative majority on the bench. (Kennedy, who will retire at the end of July, often served as the swing vote between the four conservative and four liberal justices.)
Its editorial board wrote a piece arguing that politics has tainted not only the confirmation process, but the selection of nominees as well.
“It’s true that Supreme Court nominees used to sail through the Senate on voice votes,” the Times wrote. “That was another era, when the major parties weren’t as polarized as they are now, and the justices’ votes often broke down in unpredictable ways.”
The board went on to claim that today, there’s very little crossover between conservative and liberal justices.
“There is essentially no overlap between the conservative justices, all appointed by Republican presidents, and the liberals, all appointed by Democratic presidents – and that was before Justice Kennedy stepped down,” it wrote.
The court issued 5-4 rulings roughly a quarter of the time for the 2017-2018 term. These sort of decisions tend to be more consequential than unanimous ones, and they garner bigger headlines as a result.
“There is a huge area of overlap, but not on the big ticket cases that drive the confirmation battles: abortion, campaign finances, labor relationships, affirmative action, federalism and some antitrust,” Richard Epstein, a law professor at New York University, told The Daily Caller News Foundation.
The divide over judicial philosophy is certainly pronounced in cases like these – Justice Samuel Alito, for example, rarely votes with Justice Ruth Bader Ginsburg on 5-4 splits – but as a general matter, the court strives for consensus, especially under the leadership of Chief Justice John Roberts.
Even for controversial cases, a court can build sizable majorities if it decides a case narrowly and avoids setting precedent. In the Masterpiece Cakeshop case decided in June, the court garnered a seven-justice majority by sidestepping the question of whether a baker can object to catering a gay wedding on religious or free speech grounds.
Justices do sometimes defy expectations and vote in surprising ways. Justice Neil Gorsuch sided with the four liberal justices in Sessions v. Dimaya, voting against a deportation statute that the court called unconstitutionally vague.
But most cases aren’t all that controversial, and there’s a significant degree of crossover between every one of the justices.
Clarence Thomas, perhaps the most conservative justice on the bench, voted with the liberal justices a majority of the time during the 2017-2018 term: 59 percent of the time with Elena Kagan, 55 percent with Ginsburg, 55 percent with Stephen Breyer and 51 percent with Sonia Sotomayor.
A typical case had seven justices joining the majority.
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