Somewhat credulously, the WSJ Editorial Board proclaims, “The ‘MAGA Supreme Court’ Doesn’t Exist.” After two paragraphs quoting Democrats railing against the current Court, they actually make a compelling, evidence-based case:
As the Justices go into their summer break, the scholars at the Empirical Scotus blog have crunched the statistics for the 2023 term: 45.8% of cases were unanimous, down slightly from 2022, but higher than in 2021 (26.4%) and in all of the three years before that. The perception is that boring, minor cases get unanimous rulings, but not always, and not this year.
Nine Justices agreed that Colorado can’t remove Donald Trump’s name from its ballot as an “insurrectionist” under the 14th Amendment (Trump v. Anderson).
Nine Justices agreed that pro-life doctors lack standing to sue the Food and Drug Administration over the abortion pill mifepristone (FDA v. Alliance for Hippocratic Medicine).
Nine Justices agreed that the National Rifle Association can sue a New York regulator for coercing insurers to stop doing business with gun-rights groups (NRA v. Vullo).
The list goes on. There were 22 cases decided 6-3 this term, but only half produced outright ideological splits, with six conservative Justices in the majority and three liberals in dissent. The other 11 rulings were at least somewhat scrambled, sometimes in significant cases.
Six Justices rejected a claim that the federal government had unconstitutionally pressured social-media websites to delete user posts, particularly on Covid-19 (Murthy v. Missouri). Justice Amy Coney Barrett wrote for a majority of three conservatives plus three liberals, while Justice Samuel Alito filed the dissent.
Six Justices said prosecutors had stretched the law in charging Jan. 6 rioters with obstructing Congress (Fischer v. U.S.). That majority included Justice Ketanji Brown Jackson, and the dissent this time was by Justice Barrett.
The 7-2 and 8-1 outcomes are also hard to interpret through a political lens. Justice Clarence Thomas wrote an opinion to uphold the funding scheme for the Consumer Financial Protection Bureau (CFPB v. Community Financial Services Assn.). Who had that on their bingo card?
A cross-bench majority in a tax case (Moore v. U.S.) refused to close the constitutional door to a wealth tax. Eight Justices said the Second Amendment permits the government to disarm an alleged domestic abuser via a civil restraining order (U.S. v. Rahimi). Justice Thomas vigorously dissented in both of those cases.
So, that’s pretty good, right? Nearly half the cases were unanimous and half of the 6-3 cases were not along ideological lines. So how, pray tell, did we get the impression that this is an ideological Court?
Presumably, it’s because the most controversial decisions went in President Trump’s favor, mostly along ideological lines. But, the Board contends,
Today’s Supreme Court takes a textualist and originalist view of legal questions, but it’s no MAGA court. This term the reversal rate for the conservative Fifth Circuit Court of Appeals, not double counting cases consolidated for argument, was 67%. That’s higher than the rate for the notoriously progressive Ninth Circuit. If Republican lawmakers imagine these Justices are ready to fulfill their wildest constitutional dreams, they are courting disappointment.
Without breaking down the cases to see if something else is at work, that seems compelling. It may well be that the 5th Circuit is simply sloppier but if the rulings were sheer partisan hackery, one wouldn’t expect this result.
Alas, they don’t help their credibility with this:
As for Presidential immunity on core executive functions, the Supreme Court is enforcing the constitutional separation of powers. The amazing thing is that Democrats are so surprised. They unleash history’s first prosecution of a former President, they’re astonished when it turns up novel legal issues, and then they’re outraged when the Justices consider the matter in light of the Constitution.
That’s just disengenuous. “They” (the Democrats) didn’t “unleash history’s first prosecution of a former President,” the Justice Department did. And, I would argue, Trump gave them little choice. He was the first President in American history to lose and election and then attempt to wield the power of his office to coerce officials to reject the will of the voters and keep him in power. He was the first President in American history to incite a riot on the Capitol to intimidate Members trying to perform their duties. He was the first former President in American history to not only absond with boxes and boxes of classified material but then refuse to voluntarily return them when asked. It was he, not “them,” that forced this standoff.
It’s indeed true that this raised novel legal issues—ones that had been debated in scholarly circles since long before Trump entered politics—regarding the separation of powers. But the Constitution offers essentially no guidance on this question. Indeed, the Framers specifically made, for example, Members of Congress immune from prosecution for certain official acts but did not do this for the President.
Who should they blame instead? Well, special counsel Jack Smith could have declined to file a Jan. 6 indictment. Or he could have written it narrowly to exclude clearly official conduct, such as Mr. Trump’s consultations with his Justice Department. But Mr. Smith didn’t do modesty. Neither did the appeals panel at the D.C. Circuit, which ruled in sweeping fashion that Presidents have no immunity whatsoever. The Justices almost had to take the case.
Again, this is just hackery. It can’t simultaneously be true that this is a novel case requiring the Supreme Court to issue guidance and that Smith should obviously have known the guidelines ahead of time. It is by no means obvious that ordering cabinet officers to do obviously illegal things is covered by Executive privilege. And, certainly, while it’s obvious that sitting Presidents have some level of immunity from prosecution, it is far less obvious whether that immunity pertains once out of office.
This is more defensible:
Democrats denounce the Supreme Court for making the Presidency too powerful, while they also denounce the Justices for stopping Mr. Biden’s unilateral regulatory actions, including his effort to forgive $430 billion of student loans without Congress. Who really thinks he’s king? The Justices are keeping each branch in its constitutional lane, and those decisions will apply to President Trump, if he wins, the same as they do to President Biden.
Leaving hyperbole aside, it’s human nature to denounce the Supreme Court for rulings whose outcome one dislikes while giving them no credit for “correct” rulings, which were after all the obvious way to decide the case. At the same time, given the extreme machinations used to get three Trump Justices on the Court—the unprecedented blocking of Merrick Garland’s appointment to keep the seat open for Trump to fill and then the rush to ram an appointment through between Justice Ginsburg’s passing and Election Day—it’s not unreasonable for Democrats to see these rulings as partisan—a ruling in favor of Presidential power in a Republican President’s case and against it in a Democratic President’s case—rather than a balancing act. Nor, frankly, is it obvious that the rulings will go the same way if Trump returns to power.
Circling back to the considerable statistical evidence that the Court has been considerably less partisan than it seems, I would point you to Adam Feldman, J.D., Ph.D. and Jake S. Truscott, Ph.D., who compiled the data in question:
First, we fully recognize that our data provides only surface-level inferences. As many have pointed out, the Court retains considerable discretion with respect to the size and scope of its docket. Indeed, a considerable majority of the Court’s decision-making is determining which appeals will not receive review, rather than what will. It is not lost on us that the population of orally argued and decided cases in the 2023 term are not fully emblematic of the Court’s broader decision-making. While we do provide statistics on the docket more generally, we advise pursuing additional scholarship focusing on this area.
Second, our summary analyses do not make distinctions between cases of varying importance to
the national discourse. Not because we fail to recognize that these distinctions obviously exist,
but because our goal is to provide an overview of the Justices’ most observable decision-making
behaviors – irrespective of the broader importance some of these decisions may have compared to
others. In short, they are numbers – nothing more, nothing less. There is no underlying agenda in
our decision to present topline statistics.
It’s beyond my expertise, and certainly the time I have available to collect and analyze data, to assess what to make of the cases the Court did and didn’t decide to hear. Or even to assess the relative importance of the 45.8% of the cases decided unanimously. That there were so many of them, though, does lend some weight to the notion that the Republican Justices are not uniformly partisan hacks. Ditto the fact that there are a considerable number of cases where individual Justices did not vote with their bloc.
Aside from increasing evidence for, at the very least, willful disregard for the appearance of impropriety on the part in several Justices taking lavish gifts from plutocrats, failing to reuse themselves from cases where they have obvious personal interests, engaging in partisan displays, and the like, the most damning indication of hackery was their handling of the immunity case. Leaving aside whether they ultimately got the ruling right, it was simply unconscionable to delay Smith’s case for months and months, virtually assuring it would not be heard before the election. That, combined with the speed in which they handled the cases on whether the Insurrection Clause kept Trump from the ballot, it’s next to impossible for anyone not a Republican partisan to believe the Justices didn’t have a thumb on the scales.
