By The Numbers: Vote Breakdown Is a Tale of Two Supreme Courts

The Supreme Court’s 6-3 conservative majority until mid June had rejected the most extreme theories advanced by conservative groups and Republican-led states. The term’s final two weeks told a different story.

After a historically slow start, the court’s three liberals were in the majority a surprising number of times once opinions started coming out in January. Sonia Sotomayor, the most liberal justice, was in the majority in 97% of the cases—more than any of her colleagues.

On the opposite end was one of the court’s most conservative justices, Samuel Alito.

Infographic: Jonathan Hurtarte/Bloomberg Law

Those numbers flipped in the final two weeks of the term, when the conservative majority struck down affirmative action in higher education, canceled Joe Biden’s student loan forgiveness plan, and sided with religious groups in the latest clash with LGBTQ rights.

By the time the term ended on June 30, it was the court’s three median justices dominating the top spots in the majority, Chief Justice John Roberts and two Donald Trump appointees, Brett Kavanaugh and Amy Coney Barrett.

The numbers tell two stories about the Supreme Court term. In one, Roberts, Barrett, and Kavanaugh would only go so far to the right in some cases. In the other, they were all in on conservative efforts to remake the law.

Race-Neutral Laws

As is usually the case, the justices were unanimous in just under half their decisions. Those were mainly lower-profile opinions and included Justice Ketanji Brown Jackson’s first majority decision, in an interstate dispute about unclaimed property.

Notable examples of the court’s rejection of extreme conservative theories came in a pair of major cases seeking to interject a colorblind reading of federal law.

In Allen v. Milligan, a 5-4 court with Roberts and Kavanaugh joining the liberals rejected an attempt by Mississippi Republicans to remake gerrymandering rules in a race-neutral fashion.

And in Haaland v. Brackeen, the court declined another race-neutral challenge to a 1970’s-era law meant to prevent the breakup of Native American families. The majority also included Barrett and Neil Gorsuch, Trump’s first appointee, who has consistently sided with tribes while on the high court.

The most consequential cases are usually reserved for the term’s final stretch.
During the last two weeks of June, the colorblind view of the Constitution won out in a challenge to affirmative action programs at Harvard and the University of North Carolina.

Vote Breakdowns

Competing narratives were evident in the number of times the justices were in the majority and in vote breakdowns.

Affirmative action was the third time the court split 6-3 along ideological lines, with liberals dissenting. Until then, conservatives were in the minority in 6-3 rulings. Justices Clarence Thomas, Alito, and Gorsuch had been in the minority in three of the court’s 6-3 rulings until that point.

But the court’s final 6-3 rulings, including affirmative action, all came down along traditional ideological lines. The liberals dissented on student loans and LGBTQ rights.

Infographic: Jonathan Hurtarte/Bloomberg Law

Shadow Docket

Increasingly, looking at the outcomes in argued cases fails to provide a complete tale of the term.

Once reserved almost exclusively for death penalty appeals, the court’s emergency, or shadow, docket has been used to decide more and more legal disputes involving societal and political issues.

This term, the justices were asked to weigh in on an expedited basis in disputes ranging from investigations into efforts to overturn the 2020 presidential election, to transgender participation in school sports, to the Food and Drug Administration’s (FDA) approval of abortion drug mifepristone, to state gun laws after the court’s recent Second Amendment jurisprudence.

The breakdown in these cases can’t be as easily analyzed, in part because who voted which way isn’t always known. The justices are not required disclose their votes off the shadow docket, though some will publicly note their dissent.