In a Supreme Court that has seen declining public confidence due in part to its 6-3 conservative ideological makeup, two Republican-appointed justices have granted a handful of victories to liberal justices by joining them in several key decisions over the past term.
The record shows Justice Brett Kavanaugh, an appointee of former President Donald Trump, and Chief Justice John Roberts, appointed by former President George W. Bush, have joined every one of the court’s majority opinions in all but three of the court’s nearly 60 cases argued this term.
The pair of conservative-leaning justices was also responsible for more than half of the cases in which the court’s liberal justices were victorious. In all, the court had 10 cases with 5-4 decisions, with seven of those decided in the liberals’ favor.
Kavanaugh and Roberts joined the Democratic-appointed justices on granting President Joe Biden’s bid to do away with a Trump-era immigration policy last month and defending COVID-19 vaccine requirements for healthcare workers in January.
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“I think Roberts comes at these things as more of an institutionalist, and maybe that’s because of his role as a chief justice,” Vermont Law School professor Jared Carter told the Washington Examiner.
“And I think that tends to inform his thinking perhaps more than Kavanaugh. But I think if you look at the court’s cert, particularly this term when the ‘liberals were successful,’ it was Roberts and Kavanaugh who stepped in more often than not,” Carter added, referring to when they achieved victorious opinions.
The primary difference between the duo and the remaining Republican-appointed justices is the pair’s record of frequency in the majority, winning around 94% of the time, when compared to Justices Samuel Alito, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch, who fall short of winning over 84% of all the cases.
The voting pattern of Kavanaugh and Roberts has been “consistent” since Kavanaugh joined the court in 2018, according to Dr. Adam Feldman, founder of the widely cited Supreme Court blog Empirical SCOTUS and principal for the legal data consulting firm Optimized Legal.
Feldman told the Washington Examiner there is “usually an effect of justices when they get on the court as being less unique, less disagreeable.” He added that while Kavanaugh “fits that mold pretty well,” that consistency “usually should wane after about this term.”
“So I’d be pretty surprised to see [Kavanaugh] stay in the majority as frequently,” Feldman said. “It’s a weird dynamic because there hadn’t really been a 6-3 ideological supermajority in the Supreme Court since before the 1950s, and at that point, what we considered conservative and liberal wasn’t really the same thing as we do now, so this is a unique point in time.”
Over the past term, members of the court’s liberal bloc, Justices Sonia Sotomayor, Elena Kagan, and the recently retired Stephen Breyer, could do nothing except dissent together in 13 decisions (or 21.7% of the total cases) decided this term, which included expanding Second Amendment rights, severely curtailing the precedent of abortion access in the nation by overturning Roe v. Wade, broadening religious freedoms through the First Amendment, and limiting the regulatory authority of executive agencies, to name a few.
While numerous analysts have been searching for the court’s new center, Feldman contends there “hasn’t been a swing justice” since Justice Anthony Kennedy, an appointee of former President Ronald Reagan, retired in 2017.
“After Kennedy retired, Roberts played that role more than anybody else. So did Gorsuch, to some extent. There would be specific areas where they would move on cases that were close, sometimes with liberals,” Feldman said.
Kavanaugh, who clerked for Kennedy, was supported by the former justice and played a key role in Kavanaugh’s elevation from the U.S. Court of Appeals for the District of Columbia Circuit. However, Kavanaugh played a pivotal role last month in overturning the compromise Kennedy had helped formulate in the 1992 case Planned Parenthood v. Casey, which reaffirmed the right to abortion.
Roberts notably drew the ire of hard-line conservatives over two separate instances to uphold former President Barack Obama’s Affordable Care Act in 2012 and 2015 cases, while Gorsuch has repeatedly excoriated his conservative counterparts on the bench for attempts to give states more power over Native American lands in cases in which he typically sides with the liberal bloc.
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Feldman said it’s too early to tell whether Kavanaugh and Roberts are the new center, but they have been the majority makers.
“I don’t think this necessarily means that they’re going to be the swing justices as much as they’re just going to be in the majority more often,” Feldman said.
