The Supreme Court's Partisan Divide Hasn't Been This Sharp In Generations
Conservatives got what they wanted from this year’s Supreme Court term — and then some.
In a flurry of decisions released at the end of June, the court’s Republican-appointed justices released opinions that overturned the constitutional right to abortion, expanded gun rights, allowed individual public school employees to pray on the job, made it harder for states to exclude religious schools from public funding programs, and limited the Environmental Protection Agency’s power to regulate carbon emissions.
It was a stunning display of the conservative justices’ power, less than two years after the death of Justice Ruth Bader Ginsburg gave former President Donald Trump the chance to appoint a third justice, leaving the court’s Republican appointees with a six-justice supermajority. This was the first full term with all three of Trump’s appointees on the court, and at the beginning of the term, we weren’t sure whether they would move incrementally to the right — a tack that Chief Justice John Roberts prefers — or take a more aggressive approach.
The conservatives answered by delivering the most far-reaching slew of rulings in modern memory. It’s now abundantly clear that Trump’s appointees are in control of this court, and they’re not searching for consensus. In fact, the divide between the court’s Republican and Democratic appointees is deeper than it’s been in the modern era.
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Usually, around half of the court’s rulings are unanimous and decisions that pit the conservative and liberal blocs against each other are much rarer. Not this year. According to SCOTUSBlog data analyzed by FiveThirtyEight, 21 percent of rulings were polarized by party of the appointing president, with all Republican appointees voting one way and all Democratic appointees voting the other way, and only 29 percent were unanimous.1
The data emphasizes that the court is deeply polarized along partisan lines — perhaps more than it’s ever been. There have always been ideological disagreements among the justices, and those have often pitted liberals against conservatives, but those divides weren’t consistently linked to the justice’s appointing party. For instance, former justices like Anthony Kennedy and Sandra Day O’Connor were appointed by a Republican president, but broke with their fellow Republican-appointed justices on key issues like separation of church and state, abortion and same-sex marriage.
Now, though, there really isn’t a “swing” justice. According to preliminary Martin-Quinn scores, a commonly used metric of judicial ideology, Justices Samuel Alito and Clarence Thomas anchor the right side of the conservative bloc, while the other conservative-appointed justices are basically indistinguishable from each other.
This means that the justices in the center — Roberts, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch — are the ones who need to be convinced to join the majority in politically important cases. And although it’s hard to tell from the Martin-Quinn scores, they didn’t agree on everything. The most high-profile division was in Dobbs v. Jackson, the case that overruled abortion rights, where Roberts voted to uphold Mississippi’s 15-week abortion ban but not to overturn Roe v. Wade.
Gorsuch, meanwhile, had some even sharper disagreements with his fellow Republican appointees. Perhaps most notably, he dissented with the liberals in a case where the other conservatives voted to give states more power over Native American reservations, contradicting the court’s position from just two years earlier. But that case wasn’t an outlier. According to SCOTUSBlog’s data, Gorsuch was in the majority in divided cases 65 percent of the time — only slightly more than liberal Justice Elena Kagan (57 percent).
The most conservative justices on the court, meanwhile, are wielding more power than they have in years. Alito wrote 21 percent of the opinions in ideologically polarized cases, and Thomas wrote 29 percent — more than any other justices except Roberts (29 percent). That means that together, the two far-right justices wrote half of the polarized opinions, including the decision overruling abortion rights and the decision expanding gun rights. And both Alito and Thomas were in the majority more than they’ve been in the recent past, particularly in divided cases. Alito, for instance, was in the majority in 78 percent of divided cases — up from 58 percent of divided cases two years ago.
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The court, meanwhile, isn’t just polarized along partisan lines — its decisions also increasingly align with the views of the average Republican voter. In that sense, the Supreme Court’s tack to the right actually started a year ago — at least, according to new research from political scientists Stephen Jessee, Neil Malhotra and Maya Sen.
In surveys conducted in 2010, 2020 and 2021, the researchers asked Americans what their opinion was about the central issues in the highest-profile cases each term, and then compared their findings to the Supreme Court’s actual rulings. They found that the court’s rulings in 2010 — when Kennedy was the median — fell roughly between liberal respondents and conservative respondents, in the country’s ideological mainstream. Ten years later, in 2020, Roberts had replaced Kennedy as the median, but the court’s decisions were still in that same middle-of-the-road position. But the following year, after Barrett joined the court, its rulings lurched to the right. Rather than falling between Republicans’ and Democrats’ views, its rulings were overall very close to the position of the average Republican respondent.
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The researchers haven’t finished analyzing this year’s data yet. But comparing the justices’ rulings to public opinion is helpful because although it’s clear the court is getting more conservative, it’s harder to quantitatively pin down exactly how conservative it’s become. For example, in 2005, his first year on the court, Roberts was tied with Alito as the third-most conservative justice. Now, relative to his peers, he’s the sixth-most conservative justice. Does that mean Roberts moved to the left? Or does it mean the court moved to the right? The Martin-Quinn scores can’t tell us.
It’s important to bear that limitation in mind because this term, the conservative justices didn’t just deliver lots of conservative rulings — they decided lots of cases that dramatically shifted the law to the right. It’s hard to track quantitatively, but cases with a conservative outcome in previous terms likely had more modest effects and didn’t diverge so much from mainstream public opinion, because there wasn’t a clear majority of justices who wanted to do big, sweeping things like overturn Roe v. Wade. So comparing the share of conservative decisions in each term may actually understate the court’s rightward shift quite a bit because many of the cases the court is now hearing are potentially much broader in scope.
Now, the question is just how far the conservative majority wants to go. In last year’s end-of-term round-up, we pointed out that in cases in which the conservative justices disagreed, the more centrist group — Roberts, Kavanaugh and Barrett — were driving the direction of decisions. That’s still true, but if the past term is any guide, the two most conservative justices — Alito and Thomas — will have a much more powerful role in the conservative bloc going forward.
And over time, it seems likely that the polarization on the court will only deepen as the justices — like the rest of the country — retreat into their ideological camps. Roberts, after all, expressed dissatisfaction with the scope of his fellow Republican appointees’ ruling on abortion — but he wasn’t unhappy enough to join the other side.
CORRECTION (July 5, 2022, 3:25 p.m.): A previous version of this story mislabeled the year 2000 as the year 1990 in the x-axis on the first chart. It has been updated.