While he wrote eight majority opinions for the court this term, it was his 18 dissenting and concurring opinions that raised eyebrows. Dorf, a law professor at Cornell, this term’s coalitions may be fragile.Law Fear And Loathing At The Supreme Court - What Is Chief Justice John Roberts Up To?Īs he has in the past, Thomas this term has charted a course that is, at times, breathtakingly different from those of his colleagues. That may change in the next two weeks, as the court issues decisions in the remaining 15 cases of this term. If anyone got the short end of the stick, it’s this year’s most conservative justice, Alito.” In divided cases, the Trump appointees have moved the court to the left. So far that prediction is way off the mark. “Going into this term,” Professor Epstein said, “the expectation was a bunch of divided decisions with the three Democratic appointees getting the short end of the stick. The percentage of liberal decisions in unanimous cases so far this term is just 30, the lowest since at least 1953.īut the story changes in divided cases, where 64 percent of decisions have been labeled liberal, the highest since 1968. The court’s Democratic appointees have not hesitated to join unanimous decisions with conservative outcomes, as labeled by the Supreme Court Database at Washington University. The change may be explained by strategic voting. In the term that ended last year, the gap was 14 percentage points in favor of Republican appointees. So far this term, the court’s three Democratic appointees have voted with the majority 73 percent of the time in divided cases, slightly ahead of the 72 percent rate of the six Republican appointees. “What remains to be seen,” he said, “is whether, notwithstanding the chief’s best efforts, his battle to promote a nonpartisan image for the court is ultimately a losing one.” Lazarus, a law professor at Harvard, said the decisions “suggest that several key justices are willing to temper their views to join the chief’s longstanding battle to have the court decide cases more narrowly and with a more unified voice.”īut he added a note of caution. “In all three episodes, with the Affordable Care Act facing a serious threat, the court has pulled off an improbable rescue.” “Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two,” he wrote, joined by Justice Gorsuch. The same coalition that joined the chief justice in the foster care case, plus Justice Clarence Thomas, saved the law. The court sidestepped questions about the constitutionality of a key provision of the law and what should happen to the rest of it if the court held the provision unconstitutional.Ĭhief Justice Roberts assigned the majority opinion to Justice Breyer, presumably knowing he would deliver a modest and technical opinion, one that ended up speaking for seven justices - the broadest majority of three Supreme Court decisions rejecting challenges to the health care law. The majority said the plaintiffs - 18 states led by Texas, and two individuals - had not suffered the sort of direct injury that gave them standing to sue. Something similar happened in Thursday’s second big case, this one rejecting a third major challenge to the Affordable Care Act, President Barack Obama’s health care law. Justices Kavanaugh and Barrett joined, too, explaining that they were not inclined to make a major move when a minor one would resolve the case. Breyer and Sonia Sotomayor - joined the chief justice’s opinion, presumably with gritted teeth and to avoid an actual decision, one written on regular paper with indelible ink. The court’s three liberal members - Justices Kagan, Stephen G. In the foster-care case, Chief Justice Roberts managed to cobble together an improbable six-justice majority for an opinion that ruled so narrowly for a Catholic charity that Justice Alito, in a concurring opinion, said it “might as well be written on the dissolving paper sold in magic shops.” That helps explain his aggrieved tone in concurring and dissenting opinions on Thursday in cases on a clash between claims of religious freedom and gay rights in the context of foster care and on the Affordable Care Act. Alito Jr., a conservative who might have thought that his views would be embraced by his new colleagues, was in the majority in divided cases just 36 percent of the time. Justice Kagan’s rate of voting with the majority jumped 12 percentage points since last term.īy contrast, Justice Samuel A. Gorsuch tied for third with Justice Elena Kagan, a member of the court’s liberal wing, at 80 percent. Justice Barrett is second, having voted with the majority 82 percent of the time this term. The two other Trump appointees are not far behind.
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