With the upcoming retirement of Supreme Court Justice Steven Breyer at the end of February, the first liberal-appointed Justice since 2010 will be nominated by President Biden. As a result, the six “conservative” vs three “liberal” split is once again thrown into the center of discussion as the media ponders over who Biden’s nominee will be and how it will affect the Court. However, believe that describing the Court as a 6-3 split is an unfair definition of our current Court’s makeup.
When Justice Amy Coney Barrett replaced Ruth Bater Ginsburg in 2020, many people expected the Supreme Court to pass down blatant conservative opinions. However, while there were conservative victories in some cases, striking down of abortion laws and same-sex decisions simply didn’t happen.
More often than most people realize, Supreme Court Justices will vote against party lines. Chief Justice Roberts, a G.W. Bush appointee, never seems to vote the way people expect him to. His vote to uphold the Affordable Care Act in 2012 was something most conservatives were very against. He is also known to consistently vote to uphold abortion rights due to stare decisis, or precedent, which is the importance of adhering to previous decisions made in similar cases.
In another example, Justice Neil Gorsuch, a 2017 Trump appointee, sided with the “liberal” Justices in Bostock v. Clayton County which protected sexual and gender minority individuals under the Civil Rights Act from being discriminated. In fact, he wrote the majority opinion while being one of the most conservative Justices on the Court.
Why do our Supreme Court Justices not always vote according to the party lines of the president that appointed them?
In the past, Supreme Court Justices were portrayed on a spectrum from legally liberal to legally conservative: i.e., Sotomayor, Breyer, Kagan, Roberts, Kavanugh, Barrett, Gorsuch, Alito and Thomas. But there appears to be a semi-consistent rift within the Conservative group that cannot be explained using this model. Some legal scholars have suggested a secondary “Institutionalist” spectrum that will show how each Justice views their role on the bench. On one end, the “4 Corners” Justice focuses on the law itself and the facts of the case while the other end, the “Institutionalist” Justice takes precedent into account when deciding a case.
Now, we have three camps.
Breyer, Sotomayor and Kagan make up the liberal camp. Roberts, Kavanaugh and Barrett make up the Conservative Institutionalist camp. Finally, Thomas, Alito and Gorsuch are the Conservative 4 Corner Justices. As a result, if any conservative Justice is going to vote with the Liberals, it will be the Conservative Institutionalists because they view their role most similarly to the Liberal Justices. These camps help explain why Roberts relied on precedent when voting on the Affordable Care Act in 2012, and it also explains why Gorsuch voted with the liberals to provide rights to those of sexual and gender minorities based off of what the words on the pages of the Civil Rights Act literally say.
Biden already declared that he wants an African American woman to serve on the Court, which will make history. His top three nominees in order are Ketanji Brown Jackson – a DC district Judge, Leondra Kruger – a moderate California Supreme Court Judge, and J. Michelle Childs – a moderate with bipartisan support.
Current trends suggest that Institutionalists are more likely to be appointed because they typically vote along party lines. However, it can be hard to judge which of these three women will do so because it requires them to write actual court opinions outlining their beliefs.