The Supreme Court is set to issue its most polarizing rulings of the term after a streak of unconventional alliances among the justices — in addition to several reversals against one of the most conservative federal appellate courts in the nation.
The justices so far have returned decisions in 47 cases out of the 65 they heard this term, meaning they have completed roughly 72% of the docket. Despite the political narrative of a sharply divided court driven by its conservative majority, only 13 cases have been decided by a 6-3 vote thus far, and an even fewer five cases have split neatly along ideological lines, according to a Washington Examiner analysis.
More rulings are expected to be released on Wednesday, Thursday, and Friday this week in cases that will range from a landmark decision involving former President Donald Trump‘s claims of broad immunity from prosecution to a high-profile ruling on the 1984 precedent known as the Chevron doctrine, which gives broad deference to agencies in legal disputes over regulations.
“The problem is that a lot of what we’re really going to learn and be talking about this term has not been released yet,” said Adam Feldman, founder of the Empirical SCOTUS website, which tracks the high court’s votes and statistics from term to term.
The number of 6-3 decisions last term was 11, though only five were decided along ideological lines. In the summer of the 2021-22 term, when the Supreme Court’s approval dropped to historic lows in the wake of the decision to overturn Roe v. Wade, the justices had a much more polarizing term, with 14 of the 18 decisions that split 6-3 being ideological votes. There are six justices appointed by Republican presidents and three appointed by Democratic presidents.
Feldman said it’s likely that the justices will issue more rulings later this week that will surpass last year’s marker, though it remains to be seen whether the justices will surpass the 14 ideological splits from 2021.
Amid a current trend of more unconventional 6-3 decisions, public opinion on the Supreme Court in recent months has been hovering at just below 40%, close to the lowest approval of the court since the weeks after Roe’s reversal with the Dobbs v. Jackson Women’s Health Organization decision, which happened two years ago this week.
Case Western Reserve law professor Jonathan Entin told the Washington Examiner that when comparing the high court’s approval rating “to where the Court used to be, 25-30-50 years ago, it’s way down. Even 47% is way down.”
“Part of that reflects the greater polarization in the country, the greater polarization between the parties, and the kind of trench warfare that goes on every time there’s a Supreme Court vacancy, and increasingly with lower court vacancies,” Entin added.
Feldman agreed that one reason for public dissatisfaction with the high court may be tethered to the election-year contest between former President Donald Trump, who nominated Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett in his single term, and President Joe Biden, who nominated Justice Ketanji Brown Jackson in 2022.
“You have this frustration from the Left, especially on the potential delay tactic that is going on with the Supreme Court not giving a decision in the [Trump case],” Feldman said, citing polling from Gallup that broke down the consistent support for the high court from the Right and “more pull away from the Left and the middle” in terms of Supreme Court approval ratings.
Democrats in recent days have also reignited their attacks on the Supreme Court and its conservative members. Earlier this month, Biden called the potential for Trump to nominate additional justices to the bench “one of the scariest parts” of a potential second term for Trump. Speaker Emerita Nancy Pelosi (D-CA) on Monday told CNN she believed the court had gone “rogue.”
“I think they’ve gone rogue. It’s most unfortunate … what happened to the chief justice? Did he go weak or did he go rogue?” Pelosi told CNN’s Anderson Cooper.
While the country may be closely divided, the unanimity and unconventional alliances the justices have formed so far this term challenges the claim by left-wing critics that the Republican-appointed majority is voting in lockstep on key disputes.
The Supreme Court has ruled unanimously on 24 of the 47 decisions it has handed down thus far, though the most agreeable decisions are typically released first. But in a 6-3 ruling last week in Diaz v. United States, Jackson found herself aligned with the Republican-appointed justices who sided with prosecutors against a woman who claimed to be a “blind” drug mule, while Gorsuch joined with her fellow Democratic-appointed Justices Elena Kagan and Sonia Sotomayor in dissent.
In a different 6-3 decision surrounding the Armed Career Criminal Act, Gorsuch wrote a majority opinion with which Kagan and Sotomayor agreed, while Jackson chose to join Kavanaugh’s written dissent alongside Justice Samuel Alito.
Another remarkable trend cropping up this term involves the 10 appeals that came from the most conservative federal appellate court in the nation, the Louisiana-based U.S. Court of Appeals for the 5th Circuit, which have ultimately resulted in several reversals. Of the 17 active judges on the 5th Circuit, only five were appointed by Democratic presidents.
Last month, the Supreme Court ruled 7-2 — with four Republican-appointed justices joining all three Democratic-appointed jurists — to uphold the Consumer Financial Protection Bureau‘s funding mechanism. That case stemmed from a 5th Circuit ruling that scrutinized the CFPB’s direct funding from the Federal Reserve, marking the first of three major rebukes against that circuit court.
The Supreme Court again dealt a blow to the 5th Circuit’s findings in a case surrounding the Food and Drug Administration‘s mid-2010s rule that made the common abortion drug mifepristone more accessible via mail and online orders. In a 9-0 decision, the justices reversed the 5th Circuit’s judgment and found the anti-abortion group that challenged the FDA’s rules lacked standing to bring the case.
And last Friday, the Supreme Court delivered another reversal to the 5th Circuit’s findings in United States v. Rahimi, ruling 8-1 to undo the appeals court’s decision to strike a federal statute that barred those subject to domestic violence restraining orders from possessing a firearm.
The left-leaning Center for American Progress published a report on May 15 claiming the 5th Circuit was inviting the “right-wing extremists” on the Supreme Court to “take sweeping action to roll back decades of progress.” But the Supreme Court’s reversals at the 5th Circuit haven’t fulfilled that narrative.
Despite a string of losses at the Louisiana-based appellate court, the justices did uphold the 5th Circuit’s decisions in one case that involved the reversal of a federal ban on bump stock gun attachments and another ruling that sided with the federal government regarding notices of removal for illegal immigrants.
The Supreme Court still has three remaining 5th Circuit appeals to decide, including a dispute surrounding Texas and Florida social media laws, a lawsuit over alleged efforts by the Biden administration to censor online speech, and a constitutional fight against the Securities and Exchange Commission’s use of in-house administrative law judges.
Case Western Reserve University professor Jonathan Adler underscored the difficulty of drawing conclusions from the way the justices vote each year, let alone before the term is over, noting that each term is an “unrepresentative sample” of how the justices are voting.
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“Each term is a subset of the issues that come before the court. And so each term is always an imperfect snapshot, and that’s going to be true this year like any other,” Adler said.
The full scope of the justices’ rulings and their voting patterns will likely be revealed by the end of this week, when the Supreme Court is expected to return decisions on a swath of polarizing matters, including challenges to federal guidance over emergency room abortions, a ruling on homeless encampment bans, along with major environmental and free speech decisions.