Liberals constantly worry about conservative domination of the Supreme Court. Would that it were true: the Court’s conservatives have long been a diverse bunch, and, unlike the liberals, they have never formed a consistent voting bloc. I have sometimes wondered whether Democratic nominees go through a secret ceremony in which they pledge to vote the Democratic Party line in any case where the party demands their vote. Probably not, I suppose, but it often seems that way.
Ilya Shapiro of the Cato Institute has done the math:
There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the “expected” ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.
That dynamic isn’t something that sprang up in the Trump era or with the court’s newest personnel. In the 2014-15 term, with Kennedy at the height of his “swing vote” power —the last full term before Justice Antonin Scalia’s death and resulting year-long vacancy — the four liberals stuck together in 55 of 66 cases, while the four conservatives (not counting Kennedy) voted as a unit in 39.
Shapiro makes this obvious point:
Speaking of politically fraught cases that end up 5-4, it’s notable that there’s never a question of how the liberal justices will vote. Speculation runs rampant over whether one of the conservatives will go wobbly — whether out of unpredictable moderation, minimalistic pragmatism or idiosyncratic theory — but the liberals are guaranteed to please their constituency.
While the liberal justices vote together in political solidarity, the more conservative justices have divergent approaches to jurisprudence which they actually try to apply with intellectual rigor. That may be commendable, but it explains why the Court as a body is more liberal than one might expect.