With the start of the Supreme Court’s new term, we will see and hear much debate lavished on blockbuster cases — the controversial opinions that play an outsize role in the public’s perception of the court and that tend to split the justices, and the country, in predictably ideological ways. In recent terms, these include the Dobbs decision overturning Roe v. Wade, the affirmative action decisions, the student debt relief case, the vaccine mandate case, the Centers for Disease Control eviction moratorium case and the Clean Air Act case about climate change.
The Dobbs and the affirmative action cases are among the relatively small number of primarily constitutional cases before the court each term. The others are among the much larger side of the docket primarily about the interpretation of acts passed by a legislature.
Broadly, these cases have come to define the Supreme Court for Americans who now see it as overly politicized and question its legitimacy. The cases often affect millions of people and, as with the Dobbs decision, touch deeply held convictions.
But the ideologically charged opinions are not the only cases the Supreme Court decides. It might surprise many people to know that in a majority of the cases the court hears, liberal and conservative justices frequently come together on the decisions. Looking closely at a major portion of the court’s past few dockets — in cases that also affect millions of people — tells a different story about its work.
In short, the Supreme Court operates much more functionally and consensually across its partisan divide than most people realize — and that fact ought to figure into how Americans judge a court that often gets caricatured.
Judged by a close look at the opinions of recent terms, the Roberts court is closer to a 9-to-0 court than it is a 6-to-3 court.
In recent research, we isolated 87 statutory cases — cases that interpret laws rather than the Constitution itself — from the Supreme Court’s last three terms. We did not study the so-called shadow docket of unsigned and mostly unexplained orders. Instead, we carefully read a set of cases that one might predict would divide the justices because of their methodological and ideological commitments: They all involve not merely the application of case precedent but also the interpretation of text passed by a legislature. With so much ink spilled on a small number of constitutional cases and the presumption that conservative and liberal justices actually read laws differently, we wanted to take a careful look at what is actually the most common type of case.
What we discovered cuts against the view, held by many, that the court is irredeemably political. Of those 87 cases, 37 percent were decided unanimously. If you add to that consensual pile any case that has only one member of the court refusing to sign the majority opinion, you get nearly half of the cases (40 out of 87).
The other cases do not come out along predictably partisan lines, either: There were actually only 10 cases over three years that generated the ideological division you might expect given the court’s configuration. The subjects of a handful of the cases predictably triggered the partisan divide. For example, our study picked up the court’s unwillingness, 6 to 3, to let the Biden administration use interpretations of statutes to effectuate debt relief, mandate Covid vaccination broadly through the Occupational Health and Safety Act or use the Clean Air Act to address climate change as it wanted to.
The cases about immigration that divided 6 to 3, however — surely another hot-button politicized issue — had corollaries that were decided 9 to 0. Even a voting rights case in the “partisan” pile has a corollary that didn’t divide the justices into their political camps. In last term’s Allen v. Milligan, most court observers assumed that the conservative justices would further weaken the Voting Rights Act. Instead, the liberal justices voted with Chief Justice John Roberts and Justice Brett Kavanaugh to hold Alabama to its statutory obligations.
To summarize, 77 out of 87 cases primarily involving ordinary statutory interpretation had conservatives and liberals voting together in a majority (and sometimes together in dissents, too). Cases about veterans’ benefits, Native Americans, the reach of the Clean Water Act and the fate of the internet haven’t always cut along the conservative supermajority 6-to-3 line. In the veterans-benefits case, Justices Neil Gorsuch, Stephen Breyer and Sonia Sotomayor pressed a pro-veteran presumption in their dissent to the majority’s statutory reading. In the Native American cases, Justice Gorsuch once voted alone and once with the liberals to promote statutory readings that embraced broader visions of Indian sovereignty.
These cases, with conservatives and liberals working together, don’t seem to get as much media attention. That may suggest that the media’s court coverage is encouraging us to see the court as polarized.
It’s not just the outcomes of these cases that have bipartisan support, but also the methodologies used to reach them. And this consensus is less skewed toward the presumptive preferences of the conservative supermajority than you might expect. A majority of the justices, including liberals like Justice Elena Kagan, are self-described adherents of textualism, a statutory-interpretation approach that emphasizes the plain meaning of text. Unsurprisingly, key textualist tactics, like using dictionaries to define ambiguous terms, were highly prevalent in these decisions.
For example, the court looked up the words “so” (in a Justice Amy Coney Barrett opinion joined by Justices Breyer, Sotomayor and Kagan, and conservatives Gorsuch and Kavanaugh) and “proceed” (in a Justice Kagan opinion joined by Chief Justice Roberts and Justices Samuel Alito, Gorsuch, Kavanaugh and Barrett).
Other methodologies, including some widely thought to be relics of the pre-textualism era in which liberals had more influence on the court, also appeared in these opinions. For instance, in 17 decisions — in cases ranging from the Armed Career Criminal Act to the Copyright Act — liberal and conservative justices relied on a statute’s purpose to give meaning to ambiguous terms, and three of the six conservatives signed on to majority opinions that utilized legislative history, a practice considered to be the antithesis of the textualist approach.
Broad support for a rather muted form of textualism, in which various interpretive tools make meaningful appearances, might be surprising, given the routine identification of textualism with legal conservatism. But it is indicative of a pragmatic way in which the court has operated across the partisan divide over these last three years.
None of this is to say that politically charged 6-to-3 decisions are insignificant. We also obviously can’t ignore some consequential decisions the court issues on the small constitutional docket about salient matters of legal, social and cultural significance. Surely they should play a role in an assessment of the court’s ultimate legitimacy.
But it is also important to look at the whole picture and recognize that ideology is not predetermining case outcomes 77 of 87 times in a large and important part of the docket that affects millions of people.
There is no doubt that if the court were skewed 6 to 3 in the other direction, some cases would come out differently. But the overwhelming majority of cases would be much as they are today: with liberals and conservatives voting together with eclectic methodologies to generate resolutions to the nation’s cases and controversies.
Nora Donnelly, a law student, and Ethan Leib, a law professor, are at Fordham.
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