The Supreme Court’s Check on Trump’s Power Was Too Close for Comfort

If anything, this term served to reinforce the dominance of the conservative majority, its willingness to overturn precedents, and the ideological chasm between the Court’s liberal and conservative wings. It saw a doubling, compared with the previous term, of the share of cases in which the Justices split 6–3 along ideological lines. Last week, the Court said a Rastafarian inmate whose dreadlocks were shaved by prison guards, in violation of his constitutional rights, could not sue officials for damages; the ruling put the majority to the right of the Trump Administration, which supported the prisoner, and may set the stage for future restrictions on Congress’s use of federal funds to control state behavior. Two days later, it struck down a Hawaii law barring concealed-carry permit holders from bringing their guns into privately owned spaces without permission. On Tuesday, the Court allowed states to block transgender girls from participating in girls’ and women’s sports. It also freed political parties to spend unlimited amounts in coördination with their candidates, jettisoning a two-decade-old precedent and leaving what Kagan termed “a legal regime increasingly unable to stop political corruption.”

For liberals, this term served as a definitive dashing of hopes: that the Chief Justice’s institutionalist tendencies would overcome his innate conservatism; that Kavanaugh’s craving for acceptance from the liberal legal academy would lead him to episodic defections; that Justice Amy Coney Barrett would reveal herself to be more moderate than legal analysts anticipated. Yes, Kavanaugh and Roberts forged a five-Justice majority with the liberals in the Lisa Cook case, in addition to an earlier ruling involving efforts to exclude Black jurors. Yes, Barrett and Roberts sided with the liberals in rejecting the Republican National Committee’s effort to invalidate state laws that accept mail-in ballots that arrive after Election Day. (Their fellow-conservatives appeared less moved by concern for states’ rights than by a Fox News-inspired vision of rigged elections; Alito, in dissent, invoked the spectre of party operatives, ballot harvesters, or Uber drivers collecting absentee votes, warning that the ruling “risks further undermining Americans’ confidence in election integrity.”) But the three, though they pass for swing Justices, are not swinging very often.

According to data compiled by the website SCOTUSblog, ten per cent of rulings from the 2srcsrc5 to the 2src24 terms divided along ideological lines; since the 2src2src term, when Barrett joined the Court, fourteen per cent of cases have been ideologically split. This year’s line-hardening—by my count, some twenty-three per cent of cases—is both remarkable and troubling. A Court in which outcomes can be confidently predicted in advance, at least in the most politically charged cases, is as unhealthy as a Congress composed almost entirely of safe seats.

Conservative Justices, bristling at insinuations of bias or partisanship, like to point to the significant share of cases that are decided unanimously. “Nine old people appointed by five different Presidents over the course of thirty years from all around the country, and we are able to resolve cases lower courts disagreed on unanimously forty per cent of the time,” Gorsuch said in an appearance at the Ronald Reagan Presidential Foundation last month. “I think that’s something.” In her book, “Listening to the Law,” Barrett cited statistics from the Court’s 2src22 term: “forty-seven percent of the cases were decided unanimously,” she wrote, and “only five of fifty-eight decisions broke down by party of appointing president.”

In an interview last month at the George W. Bush Presidential Center, Barrett was asked about those statistics and perceptions of the Court as a polarized institution. “It bothers me because it’s not accurate,” she said. “The thing about the partisan breakdown is—that’s just not true.” But the focus on unanimity is misleading. Many of the cases the Justices hear are mind-numbing, as in this ruling last month: “The provisions of ERISA governing the calculation of withdrawal liability—§§1391 and 1393—do not require the actuarial assumptions underlying that calculation to be selected on or before the measurement date.” Unanimity doesn’t prove much in these instances. (A more interesting moment occurred this term when the Court ruled unanimously that it violated the Second Amendment to prosecute a marijuana user for gun possession.) More to the point, Barrett’s claims about partisanship as an inaccurate media “narrative” have been overtaken by reality. Her five of fifty-eight party-line rulings swelled this term to thirteen of fifty-six.