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The Supreme Court’s Conservative Revolution Is Already Happening

Everyone keeps waiting for the Supreme Court’s big right turn — especially this year. The justices have now begun their first full term with a 6-3 conservative majority, and the docket is full of culture-war issues, such as abortion, gun rights and religious liberty.

But in many ways, the Supreme Court’s conservative revolution is already here: The court hasn’t been this ideologically tilted in almost 100 years. Capturing the full breadth of this shift is difficult because the metrics we use to measure the court’s ideology are driven by hard-to-track factors like the types of cases the court takes up. For the first time in decades, too, a single justice isn’t holding the reins. The conservative justices can now assemble a majority more easily, giving them the power to push the court even further right.

That power may take some adjusting to — for both the public and the justices. The past term showed that there will still be plenty of room for disagreement on the precise path forward. One example was a high-profile religious liberty case where the most conservative justices took their fellow GOP appointees to task for issuing a ruling they saw as too timid. And the main priority of the liberal justices, now distinctly in the minority, appeared to be damage control. Moreover, some big decisions were taking place outside the public eye.

“Right now, I see two courts in action,” said Lee Epstein, a political science professor at Washington University in St. Louis who studies the Supreme Court. “We see a standard Roberts court that leans conservative but has a serious amount of consensus and tries to look pretty nonpartisan. Then, within that court, we have an aggressive, socially conservative court led by the three Trump appointees plus [Justice Clarence] Thomas and [Justice Samuel] Alito.” Epstein told us that was likely why the justices decided to hear two extremely high-profile cases on abortion and gun rights this term — a signal that at least some conservative justices thought they now had the numbers to push the law to the right on those issues. 

We don’t know how those cases will come out, of course, but the justices don’t have to overturn Roe this year for the court to still be deeply conservative. Friction among the conservatives isn’t necessarily a sign that the court is moderating; it may simply take time for the GOP-appointed justices to work out their plans for the enormous amount of power they now wield. Life tenure grants them plenty of space to hash out these differences. This means we need to start watching the court in new ways — and stop waiting for the justices to suddenly accomplish all of conservatives’ legal goals at once. It’s the overall trajectory of the court that matters, and there’s no sign that it will disappoint conservatives in the long term.

The court is already very conservative

Let’s get one thing out of the way: This is a very conservative Supreme Court. According to the Supreme Court Database, 60 percent of all decisions last term went in a conservative direction, as well as 59 percent of close decisions — which is to say, decisions in which the minority side had three or four votes. That makes the court’s previous term the most conservative term since 2008, just three years after John Roberts assumed his seat as chief justice.

Early in the Roberts years, the court was seen as the most conservative in decades. After Roberts and Alito were nominated by then-President George W. Bush and confirmed by the Senate, the court issued a slew of highly conservative rulings, deciding to uphold a ban on second-trimester abortions, to include an individual right to bear arms as a part of the Second Amendment and to gut the Voting Rights Act, freeing states with a history of racially discriminatory voting practices to change their election laws without federal approval.

That pattern shifted somewhat abruptly around 2012. The share of cases that went in a conservative direction dropped below half in the 2013 and 2014 terms, and then hovered around 50 percent until last term, when the share of conservative court decisions skyrocketed. And this time the court’s sudden lurch to the right may last, as the court appears to be hearing increasingly conservative cases.

Demonstrators hold pro-life and pro-choice signs.

Related: Why Abortion May Now Motivate Democrats More Than Republicans Read more. »

The court is asked to hear thousands of cases each year, which makes it very difficult to know whether the kinds of questions the justices are asked to contemplate are changing — if, for example, conservative legal advocates have begun bringing more cases that directly attack liberal precedents. There also isn’t any data to help us look for patterns in the pool of cases the court can pick from — or in the cases it ends up taking.

But the court’s docket seems to be shifting, according to several legal experts we spoke with. Tom Clark, a political scientist at Emory University who studies the judiciary, pointed to the fact that the justices agreed to hear a gun rights case for the first time in over a decade as evidence. “That’s not a case [the conservatives] take unless they think they can win,” he said.

But the conservative justices might still disagree with each other

That the court is increasingly tilting to the right, however, does not mean that the justices will deliver conservative victories on every high-profile issue — or that they’ll be unified about the best approach. Now that they have a solid six-justice majority, the GOP appointees have a new luxury or a new challenge, depending on how you look at it: They can disagree with each other.

That’s because for the first time in decades we’re not in a situation where a single swing justice controls the court. Instead, several justices are bunched together around the median.

Epstein said that between 2005 and 2017, when Justice Anthony Kennedy was the median justice, it was easier to foresee where the court would come down on a specific issue because in many cases where he was the deciding justice, his ideology was well-known. Similarly, when Roberts took over the role of swing justice around 2018, he appeared to take a more moderate stance in cases where the court’s institutional reputation was at stake. But now there are several potential “swing” justices. To produce an outcome that sides with the liberal justices, it now takes two conservative justices to defect in close cases. This makes it much harder to predict how the court will rule.

And fissures among the conservative justices could lead to some unpredictable and confusing outcomes. Consider the rate at which the justices joined the majority opinion last term. Even with a conservative majority, the GOP-appointed justices weren’t on the same page about every decision.

If you look at how often each justice agreed fully with the majority opinion in close cases — which is to say, they signed onto the opinion without writing their own separate opinion outlining different reasoning or a disagreement — two factions among the conservatives emerge.1 Justices Brett Kavanaugh, Roberts and Amy Coney Barrett are in one camp, much likelier to be in full agreement with the majority opinion. While Justices Alito, Neil Gorsuch and Thomas are far less in step. In fact, Thomas had the lowest rate of full agreement of any of the justices, including the liberal justices.

The conservative justices don’t always fully agree

Share of full and partial agreements with the majority opinion for close cases in the 2020 term, by justice

Agreement
justice Party of Appointing President Full Partial
Brett Kavanaugh Republican 83.3% 88.9%
John Roberts Republican 83.3 83.3
Amy Coney Barrett Republican 68.8 68.8
Samuel Alito Republican 55.6 66.7
Stephen Breyer Democratic 50.0 50.0
Neil Gorsuch Republican 44.4 72.2
Sonia Sotomayor Democratic 44.4 44.4
Elena Kagan Democratic 33.3 33.3
Clarence Thomas Republican 22.2 50.0

Full agreements are when the justices join the majority opinion without writing a separate concurrence or dissent; partial agreements are when the justices are in agreement but may write separate opinions to explain how their perspective differs from the majority opinion. Close cases are those in which the minority side had 3 or 4 votes. This excludes cases without a signed majority, such as per curiam cases.

Data is based on 16 cases for Barrett and 18 cases for all other justices.

Source: SCOTUSblog

Notably, this picture shifts when we look at the number of times that justices partially agreed with the majority opinion — which is to say, they joined at least part of the opinion but might have written a separate opinion outlining a different perspective. Thomas is still somewhat of an outlier among the conservative justices, with an agreement rate of 50 percent, but Gorsuch and Alito’s agreement rate jumps very close to the other Republican appointees. That signals that Gorsuch and Alito weren’t fully at loggerheads with their fellow conservatives about the outcome in many close cases, though they still disagreed about some component of the majority opinion’s reasoning.

This is why each justice’s perspective on specific issues could matter more in the upcoming term; their ability to persuade each other will be key, too. Take abortion rights. Five of the conservative justices may agree that Roe v. Wade, the 1973 opinion that established a constitutional right to abortion, should be overturned, but that wouldn't mean they’d be on the same page about how to do it. And that makes a difference for how far-reaching the court’s rulings will be. For instance, when it comes to abortion, the justices may end up with a compromise ruling that narrows the constitutional right to abortion without getting rid of it entirely.

To be clear, that’s still bad news for the liberal justices. They’re likely to find themselves compromising a lot more since, ultimately, the conservatives are in the drivers’ seat. Clark pointed out that when Roberts was nominated to the Supreme Court, he was criticized as a Republican partisan and likely foe of abortion rights. “Now, he could end up in the minority of a case overturning Roe v. Wade,” Clark said. “That’s how conservative the court is right now.” 

The question, he added, isn’t whether liberals will lose on big cases — it’s how badly they will lose.

And that can be a tricky thing to track because what looks like consensus among the justices may be the liberal justices moderating their stances in the hopes of keeping the conservative justices from going too far. That appears to have been what happened in that religious liberty case from last term. The decision was ostensibly unanimous, but in reality, the court was split. In that case, the liberal justices “won” by preserving the status quo — a dynamic that might persist in future terms. 

Some important decisions are happening outside the public eye

Increasingly, too, the justices are making big decisions without fully explaining their reasoning, through cases that have emerged through the court’s “shadow docket,” where the justices are asked to rule quickly, without the extensive legal briefing or oral arguments that happen in normal Supreme Court cases. Sometimes, these orders are only one sentence long. And the justices don’t have to say how they voted or why.

Normally, this swiftness and secrecy isn’t especially newsworthy because the rulings that come out of the shadow docket just aren’t that significant. But that has changed in recent years. Some of the court’s biggest rulings in the past year — including its decision to strike down COVID-19 restrictions on religious gatherings and its decision to allow a highly restrictive abortion law to go into effect in Texas — came out of the shadow docket.

The shadow docket is very difficult to track, for obvious reasons — it’s hard to know what the justices are even doing. But scholars like Stephen Vladeck, a law professor at the University of Texas-Austin, have found evidence that the Supreme Court’s use of the shadow docket has changed over the past few years. For instance, according to data collected by Vladeck, the number of cases in which the justices changed the legal status quo — for example, lifting an injunction imposed by a lower court — used to be very low, numbering in the single digits each year. That has changed recently, though. In the 2019 term, the court disrupted the status quo in 19 shadow-docket cases, and the same thing happened in 17 shadow docket cases in last year’s term.


I do buy that limiting abortion access will mobilize Democrats at the polls: Silver

What we don’t know is why this is happening or how this fits into the broader ideological shifts on the court. And that’s a big problem for making sense of what little data we do have. Many of the shadow-docket rulings that made news did split along ideological lines. But what these decisions mean for the overall tilt of the court is much harder to say.

Those examples suggest that the Supreme Court — which was already quite conservative — has recently transformed into an even more ideologically extreme body. And to understand what the court is doing, we need to stop relying on outdated ways of thinking about the justices. We aren’t in the land of a single swing justice anymore. Now, a more complex negotiation among the conservative justices will determine the outcome in important cases. There is a distinct possibility that we are heading into a blockbuster term with some significant victories for the conservatives, too. But more than anything, this term will tell us a lot about how the conservatives intend to move forward — because it’s pretty clear already what direction they’re heading.

Footnotes

  1. According to SCOTUSBlog, “Full agreement is defined as two justices joining the same opinion(s) in all parts, without writing separately,” and “Partial agreement is defined as two justices joining at least part of the same opinion, even if one writes separately.” A justice’s partial agreement score includes the share of opinions they agreed with fully.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

Laura Bronner is a senior applied scientist at ETH Zürich and FiveThirtyEight’s former quantitative editor.

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