


The number of ideologically polarized, 6-3 rulings on the Supreme Court is unlikely to match the roughly dozen such splits handed down last term as the justices prepare to release their final batch of major rulings this week.
Last year, the liberal justices were on the dissenting side in 13 rulings, including in major decisions to overturn Roe v. Wade and a ruling that applied a "historical tradition" approach to determine the scope of Second Amendment protections. This year, the justices have only produced that ideological split in two cases, Samia v. US and Jones v. Hendrix.
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Adam Feldman, the founder of the Empirical SCOTUS blog, told the Washington Examiner that the Supreme Court is "highly unlikely" to match the 6-3 splits of last term with 10 cases outstanding.
Feldman said several factors explain the shift, noting that a large bulk of the 59 cases to be decided this term have seen "some mix of liberal justices in the majority."
In one recent example, Justice Samuel Alito penned a unanimous decision in Sackett v. EPA, which scaled back the Clean Water Act, reducing its mandate by tens of millions of acres. The unanimous court agreed to overturn the lower court decision in that case, but three liberal justices as well as Republican-appointed Justice Brett Kavanaugh did not agree on the new legal test the ruling established.
"Whether they truly agree with it or not — with the majority opinions — I think they're there to possibly make it less of a hard conservative outcome," Feldman said.
In the 49 decisions in argued cases the court has decided so far, the trio of justices most often to side against the majority have been three Republican-appointed justices. Alito has dissented in 12 cases this term, Justice Clarence Thomas has dissented in 12, and Justice Neil Gorsuch has dissented in 10.
With new opinions expected Tuesday morning, the number of rulings split between the six Republican-appointed and three Democratic-appointed justices could rise. Liberal justices could find themselves on the dissenting end of contentious issues such as the fate of affirmative action, President Joe Biden's plan to wipe out millions of student loan borrowers' debt, and whether some businesses can refuse service for same-sex weddings.
One recent opinion that generated surprise among court watchers was a June 8 ruling that held Alabama violated the Voting Rights Act by not forming a second black-majority district during its previous reapportionment process. The 5-4 decision in Allen v. Milligan was formed by the liberal justices with the help of Kavanaugh and Chief Justice John Roberts.
Legal experts, including Case Western Reserve University Law School professor Jonathan Adler, have pushed back on labeling the court as more "conservative" or "liberal," arguing "no term gives us a representative picture of the court's jurisprudence because no term is wholly representative of the range of issues the court confronts.
"We can only understand the court by looking more broadly at what it's doing. So, the court is neither as predictably conservative as folks thought a year ago or as moderate as some are suggesting now," Adler told the Washington Examiner.
The Supreme Court receives thousands of petitions a year, and each submission has a roughly 20% chance of being accepted for consideration. It takes a vote by at least four justices to tee up a case for future arguments.
Because of that selectivity, Cornell Law School professor William A. Jacobson told the Washington Examiner it would be a "mistake" to rely too heavily on past trends "because of the limited docket that the Supreme Court has."
"I think if you focus on the key ideological disputes, then maybe it is a little bit more true that it's getting closer to 6-3," Jacobson said, adding it's also the case that a 6-3 split means "conservatives can afford to lose somebody" to the dissenting side.
In the Friday Coinbase v. Bielski decision, Thomas found himself dissenting alongside liberal Justice Ketanji Brown Jackson in part against the majority's decision in favor of the cryptocurrency company.
Likewise, Thomas drew the ire of Jackson in his majority opinion in Jones v. Hendrix, saying the majority was "forever slamming the courtroom doors to a possibly innocent person.”
Feldman said one key takeaway so far from this term is not that the liberals aren't dissenting, but that the ideological splits will likely be a less frequent occurrence when comparing the two most recent terms.
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When it comes to certain disputes, the justices are "looking for ways possibly to find compromise," Feldman said, pointing to the three separate written concurrences in the Sackett decision "that read kind of like dissents."
"The liberals could either decide to dissent over and over again, or to do what they can to have some say in the outcome," Feldman said. "So, they're going to get their say by finding some way to join, some common ground."