Where We Are At The End Of The Supreme Court’s 2022 Term

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Recently there has been quite a bit of discussion on social media and in the press regarding inferences we can make from data on Supreme Court justices’ behavior. One critique raised was that levels of unanimity do not show that the Court is necessarily moving to the left or to the right as a unit because we are not privy to information related to case selection in most instances (sometimes we see dissents from denial of cert but that doesn’t mean that other justices didn’t vote to deny cert as well and only didn’t want to sign onto a written dissent).  This argument makes sense to the extent that if the justices select a handful of cases where they agree on the outcomes they would vote together notwithstanding ideological differences.

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It is important to distinguish the focus of the critique from ancillary arguments though. Data can help illuminate trends and important factors in judicial decisions that are not apparent without a sufficient case sample to draw from. When data are presented along with potential hazards about making inferences based on missing information, the data should be unbiased as to the outcome of any analysis. Although one may disagree with an analysis, evenhandedly presented data offer substantial opportunities to explore courts and the Supreme Court in particular in a way that qualitative analyses alone do not. That is all to say that it is important to focus on what the current critiques of data analysis are and are not.

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Many in the public media would like to know how the Court has shifted over time and so another tactic for understanding this is looking for multiple points of convergence where data show similar trends.  Jake Truscott and I recently wrote about and provided statistics related to the justices’ decisions this past term. That article was agnostic as to the inferences that could be made from those data. This post looks at trends related to frequencies in the majority and to justice alignment and looks at those statistics in all cases and in close cases with 5-4 or 6-3 votes (6-3 only for the 2020-2022 terms where the Court had a 6-3 conservative majority). While this might not show how the Court moves as a singular body, it does provide some insight on how the Court is moving relative to the justices’ positions.

Even though these data provide more context as to Supreme Court decision making trends, they very well could be affected by the Court’s case selection as well as by the justices’ movements overt time (the underlying measures from this paper showing drift have also recently been subject to criticism although the results in this paper have been substantiated by others as well).

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Trends in Frequency in the Majority

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Chief Justice Roberts has acted as the Court’s anchor most of the time since he was appointed in 2005. His lowest frequency in the majority for all cases was 77% in 2014 and his highs were 96% in the 2019 term and 95% this past term. His average frequency in the majority is 88% and since he has been well above that level for the past three terms it appears as though he has moved closer to his preferred point on the Court since Justice Barrett joined in 2020.

Roberts averages 68% in the majority in close cases although there is more fluctuation in this measure for Roberts over time.  He reached a high of 91% in the majority in these cases for the 2019 term and he was in the majority 83% of the time this past term.

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Even though the Court has had a majority of conservative justices for most of his time on the Court, Justice Thomas has a more modest frequency in the majority since he joined the Court in 1991 of 78%.

Thomas has maintained a steady position around his average frequency in the majority in all cases including for the past three terms. Thomas had a low of 54% in the majority for the 2014 Term.

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Thomas has an average of 62% in the majority in close cases with a low of 33% in the 2014 term.

Justice Alito averaged 79% in the majority and has been just above this for the past two terms at 83% two terms ago and at 80% this past term.  Aside from his partial first term on the Court in 2005, Alito’s lowest frequency in the majority was 70% for the 2014 term.

Alito has had some movement around his average frequency in the majority for close cases which sits at 61%. While he was at the 61% marker for the past term, he was above this for the two previous at 71% for the 2021 term and 67% for the 2020 term.

Similar to Justice Alito, Justice Gorsuch had a low frequency in the majority for his partial first term before he settled into an average of 73% in the majority. Gorsuch’s highest frequency in the majority was 89% in 2019. He was above his average this past term as well at 83%.

In close cases though, Gorsuch has been below his average of 70% in the majority over the past two terms at 55% and 56% respectively.

Justice Kavanaugh is the second most recent justice to join the Court.  Kavanaugh has been regularly among the most frequent justices in the majority over the past several terms averaging 91% in the majority but reaching 94% and 96% in the majority over the past two terms.  While Kavanaugh averages 79% in the majority in close cases, he was in the majority 90% of the time in such cases two terms ago and 83% in the majority in close cases this past term.

Justice Barrett’s frequency in the majority moves somewhat in opposing directions for all cases and in close cases. In all cases Justice Barrett’s frequency in the majority jumped from 74% in her first term to 86% in her second term, and 91% this past term. By contrast she had her highest frequency in the majority in close cases when she started on the Court in 2020 at 91%, dipped to 72% in 2021, and jumped back up to 81% this past term.

The general movement of the conservative justices’ frequencies are upward trajectories, especially since Justice Barrett joined the Court for the 2020 Term.  We see mainly the opposite movement for the liberal justices.

Justice Sotomayor averaged 75% in the majority since she joined the Court in 2009.  This is (not surprisingly) lower than that for any of the more conservative justices on the Court.  Her frequency was lower than average for the three terms prior to this one and was as low 56% in 2021. This term her frequency increased to 82%

Justice Sotomayor’s average frequency in close cases is quite a bit lower than that for any of the more conservative justices at 41%.  Like her frequency for all cases, Sotomayor’s frequency was below average for the past several terms before this one and reached 43% for the 2022 Term.

Justice Kagan has been in the majority a shade higher than Justice Sotomayor averaging 77% since she joined the Court in 2010.  She hit a high of 89% in 2016 and a low of 65% in 2021. This past term her frequency was just above her average at 80%.

In close cases Kagan’s frequencies show a lot of variation. She was not in any close majorities during the 2015 but the sample was quite small since it was an eight member Court after Justice Scalia died (the only two cases that fit the criteria were RJR Nabisco v. European Community and Fisher v. University of Texas at Austin and Kagan recused herself in Fisher). Aside from 2015 her low was 17% in 2017. This past her frequency in close cases was just above average at 50%.

Since Justice Jackson recently completed her first term on the Court I included the positions of her predecessor on the Court, Justice Breyer, for all terms after 2009 and prior to this past one.  The average between the two justices since 2010 is 80%. Justice Breyer’s frequency from 2017 through the past term was below the 80% marker while Justice Jackson reached 84% in the majority this past term.

Justice Breyer’s frequency in close cases since 2010 was all over the map with an average of 46%, a high of 78%, and a low of 22%. Justice Jackson’s frequency in close cases this term at 56% was higher than any of Justice Breyer’s frequencies since 2010 aside from the 78% in 2014.

The liberal justices were in the majority a bit more frequently for the term just completed than in the 2021 Term. The liberal justices’ general similarity of frequencies across recent terms and the difference between their frequencies and those for the more conservative justices underscores that the differences between the conservative and liberal justices’ frequencies increased since Justice Barrett joined the Court for the 2020 Term.

Justice Alignments

Since there are so many combinations of justices I focused on several pairs where the justice pairs were either closely aligned or did not share many common votes this past term.

Justices Roberts and Kavanaugh have been one of the closest pairings of justices since Kavanaugh joined the Court in 2018, reaching 98% agreement across all cases and 97% agreement in close cases for the 2021 Term.  The only case from the 2021 term where they disagreed was in Whole Woman’s Health v. Jackson.  Their agreement in close cases, while at a high level, shows greater fluctuations than their agreement level in the full set of cases.  This pair averaged 96% agreement across all years and 89% agreement in close cases. They agreed 95% of the time in all cases this past term and 89% in close cases.

Although both on the far right of the Court, Thomas and Alito agree less frequently than we see from Roberts and Kavanaugh. Thomas and Alito averaged 86% agreement in all cases and 87% agreement in close cases.  Their lowest level of agreement was 71% in the 2015 Term. In close cases their alignment dipped to 66% for the 2020 Term. This past term Thomas and Alito agreed 85% of the time in all cases but they were below average at 78% of the time in close cases.

Justices Gorsuch and Alito show a more variation in their agreement than the previously examined duos. This is especially evident in the dip from 94% agreement in close cases in 2017 to 61% agreement in such cases in 2018. The two average 84% agreement in all cases and 79% agreement in close cases. Last term they were just above the average in all cases at 87% and just below their average in close cases at 79%.

We had our first look at the dynamics between Justice Jackson and the other justices this past term. This graph looks at Justice Sotomayor’s agreement with Justice Breyer from the 2009 through the 2021 Terms and then with Justice Jackson in the 2022 Term. While there was some movement in agreement with the transition of Justice Breyer to Justice Jackson, the differences were not as striking as some year-to-year differences between Justices Breyer and Sotomayor’s alignments.

The Justice Sotomayor and the Breyer/Jackson combination averaged 87% agreement across all cases. Last term Justices Sotomayor and Jackson agreed 95% of the time which although higher than Breyer’s average with Sotomayor, was not as high as Justice Sotomayor and Breyer’s agreement of 97% in the 2020 Term.

In close cases Justice Sotomayor agreed with Justice Breyer or Jackson 87% on average. In 2020, Breyer and Sotomayor agreed 93% of the time in close cases. This dipped to 83% agreement in close cases for the 2022 Term when Justice Jackson joined the Court.

When examining voting agreement between liberal and conservative justices, the differences between agreement in all cases and in close cases is stark. In this graph Justices Thomas and Kagan agreed on average 59% of the time in all cases, yet their agreement was just over 4% in close cases.

This past term the two agreed 64% of the time in all cases and hit a high of 22% agreement in close cases.  For close cases in the 2022 Term the two agreed had aligned votes in in Bittner, Pork Producers, Coinbase, and in Helix Energy.

Justices Sotomayor and Alito also have had low agreement rates relative to those for other justice pairs. They agreed 58% of the time on average in all cases, but just 2% of the time in close cases.  These two had their highest agreement level in all cases in 2016 with 72%.  After the 2016 term their agreement dipped a bit for several terms.  These justice had their highest agreement level since 2016 this past term at 62%.  The two justice had their highest frequency of agreement in close cases this past term as well at 6%.

Concluding Thoughts

These data showing frequencies in the majority and justice alignment in all cases and in close cases shed more light on the condition of the current Court and at the impact of the new 6-3 conservative to liberal Court composition.  This should be taken with a grain of salt, however, because the public is not privy to case selection data.  With six conservative justices and a conservative majority like nothing that has existed in nearly 100 years the conservative justices have great power over the cases selected. The norm for granting cert is that four justices must vote in favor of a grant (this is known as the Rule of Four). Not only do the liberal not have sufficient votes to force a cert grant on their own, but if they are forward thinking, one might not expect them to push for cert grants in cases where they might be able to get a fourth vote on cert, but where they would not get a fifth vote on the merits. On the other side of the coin, the conservatives can push to hear cases that the Court might not have heard in past terms, because of newfound confidence that the justices on the right will vote together in cases revisiting certain issues like abortion and affirmative action.

If we assume some uniformity in case selection (which is an assumption), then we see general stability in the justices’ positions over time with at least a discernible shift right when Justice Barrett joined the Court.  For the 2022 Term the justices generally had generally similar frequencies in majority from the 2021 term to the just completed 2022 term. In several instances the justices’ frequencies rose in the 2022 term from their 2021 term levels. These frequencies generally were not all time highs for the justices though.

In terms of agreement, we see more variation across time than we do with the frequency data. The justice pairs’ agreements ebb and flow from year to year.  Even with the generally higher agreement levels this term from last term, these levels follow the same general pattern of rises and then drops.  The bottom line is that the justices followed already formed trends in majority frequencies and alignments in this past term. While the levels recently rose in several instances, this rise could have been (and likely was) caused by a multiplicity of factors, both known to and hidden from the public.

* The Supreme Court Database was used as a data source for years prior to the 2022.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on Twitter: @AdamSFeldman.

Topics

Courts, Dr. Adam Feldman, Supreme Court