Chief Justice of the United States John G. Roberts Jr. has found an ally in Justice Brett M. Kavanaugh in the middle of the bench, where they sided together on rulings the most often of all the justices in the 2022 term.
Chief Justice Roberts has been known as the Supreme Court’s centrist member since Justice Anthony Kennedy — a reliable swing vote — retired in 2018.
But Justice Kennedy’s replacement, Justice Kavanaugh, has been keeping the chief justice company in recent months: The two justices were in the majority the most among their colleagues this year, according to Adam Feldman, a Supreme Court scholar and creator of the blog EmpiricalSCOTUS.
“Kavanaugh and Roberts were really the center of the court this term,” Mr. Feldman said. “They really had a lot of sway in what direction the court went.”
Justice Kavanaugh was in the majority 96% of the time for the court’s rulings issued during the 2022 term, while Chief Justice Roberts was in the majority 95% of the time.
Together, they’ve reached agreement in 98% of the cases overall, according to Mr. Feldman’s research.
Curt Levey, president of the Committee for Justice, noted that Justices Neil M. Gorsuch and Justice Amy Coney Barrett also served as swing votes, after Chief Justice Roberts and Justice Kavanaugh.
Justices Gorsuch, Kavanaugh and Barrett were appointed by President Donald Trump, who promised in his campaign to nominate conservative jurists to the court — even forming a list of conservative lawyers, politicians and judges during his 2016 campaign of potential high court appointments in an attempt to make the process more transparent.
Justice Barrett appears to be in the majority more in recent years since she joined the court in 2020.
Mr. Feldman’s data shows that she went from being in the majority on opinions 74% of the time during her first year to 86% during her second year. Now during her third term, she was in the majority 91% of the time.
Justice Gorsuch, meanwhile, sided with the majority of the court 83% of the time this year.
Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law, said the fact that Justice Kavanaugh and Chief Justice Roberts are in the middle of the bench shows that the court is still very conservative — providing only minimal “relief” in terms of how far the conservative wing of the court could go in overturning precedent.
She said the interruptions to the law — like the conservative justices overturning national abortion rights last year in a historic move — are “potentially destabilizing” and show the court is ”moving in this extremely conservative and potentially destabilizing direction.”
The most conservative member is Justice Clarence Thomas, according to Mr. Feldman’s analysis, pointing to his concurrences on last year’s abortion decision and this term’s elimination of affirmative action — noting Justice Thomas would have gone even further on the right to privacy and in saying he wanted to eliminate any vestige of race in the admissions process.
“His separate writing is where Thomas distinguished himself even more from any of the justices on the right. I think [Justice Samuel A. Alito Jr.] is a close second in terms of his position on the court on the right of the court,” Mr. Feldman said.
But he said in terms of the other wing of the court, Justice Sonia Sotomayor remained the court’s most liberal jurist even after Justice Ketanji Brown Jackson took the bench for her first term.
“Sotomayor is to the left of Jackson, although perhaps less than some expected this term. We see a bit of this difference through these two justices’ votes this term and especially with Jackson ending in the majority more frequently than Sotomayor for the term,” Mr. Feldman said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.