a numbers game

The Supreme Court of the United States has been busy this week (notes this SCOTUS-watcher, whose pinned tabs include supremecourt.gov). You hear a lot these days about a “polarized” and therefore somehow illegitimate court. A 6-3 court, we always hear, with six Republican appointees (Chief Justice Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett) and three Democratic appointees (Kagan, Sotomayor, Jackson). The Court has handed down nine opinions in the past two days. Let’s break down the votes, using the bold/italic formatting used above to make things clear:

Texas v. New Mexico:

JACKSON, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, ALITO, and BARRETT, JJ., joined.

Department of State v. Munoz:

BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined.

Erlinger v. United States:

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROBERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J., filed a dissenting opinion, in which ALITO, J., joined, and in which JACKSON, J., joined except as to Part III. JACKSON, J., filed a dissenting opinion.

Smith v. Arizona:

KAGAN, J., delivered the opinion of the Court, in which SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined, and in which THOMAS and GORSUCH, JJ., joined as to Parts I, II, and IV. THOMAS, J., and GORSUCH, J., filed opinions concurring in part. ALITO, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., joined.

United States v. Rahimi:

ROBERTS, C. J., delivered the opinion for the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. GORSUCH, J., KAVANAUGH, J., BARRETT, J., and JACKSON, J., filed concurring opinions. THOMAS, J., filed a dissenting opinion.

Gonzalez v. Trevino:

Per curiam decision — that is, by the whole court with no one justice writing the opinion. A rare thing, done in this case for reasons too complicated to get into here.

Moore v. United States:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. JACKSON, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined.

Chiaverini v. City of Napoleon:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. GORSUCH, J., filed a dissenting opinion.

This is a pretty typical set of SCOTUS decisions in one major way: only one of the decisions (Munoz) follows the 6-3 split that, we are told by almost all who write about such matters, shitposters and professionals alike, simply defines the character of the court. But as Adam Feldman has written on the invaluable Empirical SCOTUS blog, “While the justices often vote across predictable lines, less predictable individual votes often get overshadowed by decision outcomes that come down as predicted.” That is, Court observers simply ignore the decisions that don’t fit their simplistic ideological frame — it’s as though such decisions don’t happen. A decision in which the dissenters include Samuel Alito and Ketanji Brown Jackson? Unimaginable! A Court in which the supposedly all-powerful right-wingers, Thomas and Alito, are the most likely to be in the minority? Inconceivable!

Sarah Isgur co-wrote that piece I just linked to, and Advisory Opinions, the podcast she hosts with David French, is consistently very good at pointing listeners to useful articles that explore some of these nuances, and usually very good at explaining those nuances directly.* Empirical SCOTUS, as I have said, is an excellent blog, and the place to start on any given issue or case is SCOTUSblog.

If you have any interest in American law, these resources are worth exploring, because they can rescue you from the sheer infantilism that characterizes almost all commentary on SCOTUS, including most of what appears in such august venues as the New York Times. Our commentators are infantile because they have only one criterion for evaluating legal decisions on any level: Did this decision give me what I want? The law doesn’t matter to them, the facts of the cases don’t matter to them, legal reasoning is completely inaccessible to them. They just want what they want, and a judge who gives it to them is Good, and a judge who doesn’t is Bad. As I say: infantile. Don’t be that way.

* Usually but not always. I have one major beef with the podcast: both hosts, but especially Isgur, use too many pronouns. I’m always hearing “it” and asking What?? Or hearing “they” and asking Who?? Isgur and French are good friends and each can often read the other’s mind, but we listeners are not so privileged — especially those of us who are not lawyers. Similarly, sometimes they’ll say of a given case “It’s pretty obvious where this one is going” — but then they don’t say where! Or they’ll say “So this one was 7-2” without saying which way it went. I think they’re assuming that their listeners are reading the opinions, or at least reading the news, before listening to their podcast, and while sometimes that’s true for me it isn’t always. I learn a lot, but I often find myself confused as I listen, and unnecessarily so. Sarah and David just need to slow down sometimes and establish the basic facts of a given case for their audiences before going on to their analysis. Isn’t that something good lawyers always do for juries and judges?