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The Supreme Court's Term Appeared To Be Cautious. The Numbers Tell A Different Story

Despite a cautious approach to controversy for most of the Supreme Court term, statistics for the whole term tell a different story. By the numbers, the justices swerved to the right, even by the standards of the traditionally conservative Roberts court.

A picture of this rightward shift is captured by statistics compiled through NPR number crunching and the SCOTUSblog Stat Pack.

More cases were decided along ideological lines with conservative results than in years past. Since John Roberts became chief justice in 2005, the court has on average decided just under 10% of its cases by polarized 5-4 votes. This term, that percentage has gone up, with the court's new conservative supermajority winning 15% of cases by a polarized vote of 6-3, plus an additional 4% decided by a conservative 5-4 majority.

Where the liberals lost

Despite some analysis suggesting that this was a year of unusual unanimity, the facts don't bear this out. True, the justices reached unanimity more than they have in the past three years, but they did so less than the average for the full 15 years of the Roberts court. And many of this term's unanimous opinions were on staid statutory questions that would put even some lawyers to sleep.

When cases did get politically charged — as when the court gutted the Voting Rights Act or when it made it easier for states to sentence children to life in prison — the justice split, and the liberals wrote angry dissents, more than they have in nearly a decade. Justices Elena Kagan and Sonia Sotomayor haven't been on the losing side this much since 2012, early in their Supreme Court careers.

Indeed, Justice Brett Kavanaugh — who this term replaced Roberts as the ideological midpoint of the court — was in the majority in split cases 95% of the time, compared with 58% for Justice Stephen Breyer, 55% for Kagan and a mere 45% for Sotomayor.

The liberals' losses grow only more pronounced if you look at the cases decided without the court's normal procedures — emergency appeals to block lower court orders, known as the shadow docket. In these cases, on subjects as varied as COVID-19 restrictions, the election and multiple executions, the three liberals (sometimes joined by a conservative colleague) dissented together 21 times, on top of their 12 joint dissents in the court's regular cases.

How conservatives spoke out

In this increasingly conservative environment, many of the justices on the right were eager to draw attention to their own views. Even when they agreed with their colleagues, Justices Samuel Alito and Neil Gorsuch voiced their opinions, often voluminously. Each wrote nearly as many pages when concurring with the court as they did when writing for the court's majority. Justice Clarence Thomas, meanwhile, was as iconoclastic and idiosyncratic as always, with more pages in dissent — 90 — than in the majority, just 68.

All of this writing frequently left little guidance for lower courts. Though the court reached unanimity in 43% of cases, many of those cases saw the justices reach the same outcome, but for different reasons. In Fulton v. Philadelphia, for instance, the court reached a joint result in favor of a Catholic charity that refused to consider LGBTQ couples for foster care, but it generated four separate opinions. And in just two cases about the police and their ability to enter a home without a warrant, the justices wrote eight separate opinions, all coming to the same conclusion by different routes.

Lawyers complain that this makes it difficult to advise clients about how to proceed in their normal course of business, whether those clients are corporations, police departments, local governments or any other entity.

Then, too, some of these separate opinions all but invited litigants to pursue a more aggressive conservative agenda. Writing separately in the foster care case, for example, Alito, Thomas and Gorsuch criticized the court — particularly their more incrementalist conservative colleagues — for not doing enough to promote religious liberty and for not overturning a three-decade-old precedent.

Where they seemed to agree

To be sure, there were liberal-conservative coalitions in a few major cases, but often on the narrowest of grounds. For instance, this year's unsuccessful challenge to the Affordable Care Act was so extreme and widely derided that almost all of the groups that objected to the law in earlier cases jumped ship this time. And the court's 7-2 decision threw out the challenge on technical grounds.

Similarly, when the court voted 8-1 to protect the free speech rights of a high school cheerleader and her F-bomb-laced off-campus message, the decision was vague enough to leave both sides claiming victory.

Next term presents many more cases aimed at issues long on the conservative hit list. Already on the docket is a case that threatens decades of abortion protections and another that could expand the right to carry guns outside the home. Also pending is a case that asks the justices to reverse long-standing precedents that permit affirmative action in higher education.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Eric Singerman