Supreme Court Achieves Historic Unanimity but Tougher Cases Loom

The US Supreme Court’s unanimity in early decisions will be hard to maintain as the justices decide controversial questions on presidential immunity, abortion, and the so-called administrative state.

The court has issued 18 opinions in argued cases so far this term, 15 of which have been unanimous.

The more than 80% figure represents the most harmony at the beginning of a term in the court’s modern era, according to Adam Feldman, the creator of the blog Empirical SCOTUS.

Unanimous rulings released by May 1 have ranged from 30% to 58% since 2017, the year when the first of Donald Trump’s three appointees began to shift the court further to the right. Since then, the court under the resulting 6-3 conservative majority has been sharply divided along ideological lines in a number of big cases.

And the high degree of unanimity isn’t expected to hold as the justices focus on getting out more than three dozen additional opinions by the end of June.

The justices, who will next announce opinions on Thursday, have dealt with easy cases quickly and unanimously, said Goodwin partner Brian Burgess. But “they have not decided the big cases” where, he said, “there are going to be dissents.”

Separate Writings

“It’s not unusual for the court’s early decisions each term to be disproportionately unanimous,” in part “because separate writings tend to slow down release and thus tend to come later,” said Arnold & Porter’s John Elwood.

So far this term, only three cases included dissents. Of those, none came down along ideological lines.

In the criminal case Pulsifer v. United States, conservative Justice Neil Gorsuch’s dissent was joined by liberal Justices Sonia Sotomayor and Ketanji Brown Jackson.

In the immigration case Wilkinson v. Garland, the court’s six conservatives split, with Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito in dissent.

And Alito and Thomas were again in dissent in the veterans’ benefits case Rudisill v. McDonough.

Deep Divide

Elwood said the early harmony could be purposeful. “It could be that the court is striving to be unanimous as much as it can be because they expect seriously divided decisions to be coming,” he said.

The justices like to tout their unanimous rulings, noting that they agree more than they disagree.

But the court often divides along ideological lines in the most consequential and closely watched cases.

The court split 6-3 last term on affirmative action, student loan forgiveness, and the right for business owners to turn away LGBTQ+ customers. Dobbs v. Jackson Women’s Health Organization, the 2022 ruling overturning the constitutional right to abortion, split that way, too.

“And this year, we have a number of cases that may foreseeably result in deep divisions,” Elwood said.

The justices, for example, appeared deeply divided during oral argument in Trump v. United States over whether the former president is immune from criminal prosecution for attempting to defy the outcome of the 2020 presidential election.

The court’s ideological divide was also on display in both Fischer v. United States, over the breadth of criminal prosecutions for alleged Jan. 6 rioters, and Moyle v. United States regarding Idaho’s abortion ban.

And the two sides were bitterly divided on whether to overturn the 40-year-old administrative law precedent of Chevron deference in Loper Bright v. Raimondo.

The tenor of oral arguments in those “big cases” suggests there’s a lot of disagreement, Burgess said.

Unusually Narrow

Even in a 9-0 decision, it doesn’t mean there wasn’t disagreement.

The court’s ruling on whether Colorado could kick Trump off the state’s primary ballot was technically unanimous. But the concurring opinions surfaced deep disagreement over the breadth of the court’s decision.

The majority reaches out to decide “questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision,” Sotomayor, Jackson, and Justice Elena Kagan wrote in their dissent. Although she agreed with her liberal colleagues that the court went too far, Justice Amy Coney Barrett chided her colleagues for highlighting their disagreement.

“In my judgment, this is not the time to amplify disagreement with stridency,” Barrett said.

Moreover, several of the court’s unanimous cases were decided narrowly, making it easier to get to a unanimous decision, Elwood said.

He pointed to rulings on social media blocking, Lindke v. Freed and O’Connor-Ratcliff v. Garnier, where the justices left much of how to implement things to the lower courts. Elwood said the decision in Macquarie Infrastructure Corp. v. Moab Partners similarly left much of the details to future courts.

“There are a handful of cases where decisions may have been unanimous because they were decided unusually narrowly,” Elwood said.