The Supreme Court's completion of its recent term saw a range of sweeping decisions including the end of affirmative action in college admissions and curbing anti-discrimination laws.
Those rulings, in addition to the court blocking President Joe Biden's plan to forgive the student debt of more than 40 million U.S. borrowers, were hailed by conservatives as victories. However, Chief Justice John Roberts, an appointee of former President George W. Bush who finished out his 17th year leading the court, voted in ways that belied the partisan perception of the court and its 6-3 Republican-appointed majority.
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Roberts was the author of several opinions that did not favor conservative interests. In one case known as Moore v. Harper, he struck a blow to a legal theory backed by North Carolina Republicans that sought to thwart state courts from reviewing gerrymandered congressional districts. He also authored an opinion in Allen v. Milligan that will force Alabama to redraw its congressional map to include a second majority-black district under the Voting Rights Act.
Standing alongside Roberts in those pivotal cases was Justice Brett Kavanaugh, one of three appointees of former President Donald Trump who has been criticized by some Republicans, including Gov. Ron DeSantis (R-FL), as not quite as conservative as GOP voters would have liked.
"I respect the three appointees he did, but none of those three are at the same level of Justices [Clarence] Thomas and Justice [Samuel] Alito," DeSantis said last month on Hugh Hewitt's radio program.
The fall 2022-23 term's spread of decisions has made it slightly more difficult for liberal critics to accuse the Supreme Court of operating under a partisan agenda as many did last year after the justices fulfilled several long-standing conservative objectives such as overturning Roe v. Wade and striking down restrictions on Second Amendment rights, among other major cases.
However, some legal experts, including University of Texas law professor Steve Vladeck, have cautioned that there are many unknown variables at play within the court's structure, such as case selection, which requires four or more justices to "grant certiorari," meaning they agree to take up the case for consideration. Because liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson can't feasibly come together and take a case without the help of other justices, the conservative wing has power over case selection.
"This docket control, which is entirely a modern phenomenon, means the justices are pre-selecting the cases they decide — including technical disputes on which they may be likely to agree," Vladeck wrote in an op-ed for MSNBC. "Thus, from the get-go, the entire data set on which too many commentators rely is biased toward the justices’ own behavior."
Still, one trend that has remained constant in recent terms is the rate at which Roberts and Kavanaugh fall into the majority, which was no different this term, according to data compiled by Adam Feldman, founder of the Empirical SCOTUS blog.
The chief justice found himself in the majority 95% of the time this term, with Kavanaugh in the majority 96% of the time.
"If we assume ... Roberts is going to swing in some cases, right, he's kind of the loosest conservative of a bunch of conservatives in the court, then Kavanaugh's vote matters a lot. Because he's the one that can push that over in some swing cases," Feldman told the Washington Examiner.
Other legal experts who spoke to the Washington Examiner agreed that the trend of Kavanaugh and Roberts often in the majority suggests they may steer some of the more "political cases" that the justices consider.
Case Western Reserve University Law School professor Cassandra Robertson noted that there are other alliances that can act as swing votes depending on the issues facing the nine justices.
"In some of the civil rights cases, we've seen occasionally a [Neil] Gorsuch and Sotomayor kind of contingent where you wouldn't necessarily expect them to be together. But there are some civil rights issues where they are. And of course, Gorsuch has really taken such a leading role on Native American issues," Robertson said.
The high court next term will hear another consequential case filed by leaders of South Carolina's legislature after a federal court found it drew a racially gerrymandered congressional map. This case too will have drastic impacts on the election and could present a similar dilemma before the justices like the Milligan case and could ultimately be determined by Roberts and Kavanaugh.
And while last term saw the high court's public approval dip down to historic lows, especially among Democratic voters, recent polls have indicated the Supreme Court's net approval rating has risen back up to the same place it was in December 2020 at 42%, a sign that public's insecurity in the institution could be subsiding.
In the chief justice's last words in his majority decision striking Biden's student loan plan, he sought to dissuade the public from skepticism about the foundation of the Supreme Court.
“It is important that the public not be misled,” he wrote, regarding any incongruity between the conservative bloc and the liberal bloc. “Any such misperception would be harmful to this institution and our country."
But Kagan appeared to push back at the chief justice in her dissent, joined by the two other liberal justices, writing, "In every respect, the Court today exceeds its proper, limited role in our Nation’s governance."
Case Western Reserve University Law School professor Jonathan Adler told the Washington Examiner that some court watchers could be reading too much into Roberts's and Kagan's final words of the term.
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"Maybe it's just me. I think people are overreacting to that exchange, looking for something more salacious than is really there," Adler said.
"It's possible there will be some speeches this summer by some of the justices that reveal that there are really serious tensions," Adler added but said he's "not convinced" that exchange expresses a serious rift among the two ideological wings.