Ignore the bad and focus on the good is decent advice for a lot of things in life, like modest progress on New Year’s Resolutions or kids who are mostly potty-trained. Evaluating the most powerful legal decision-making body in the country, however, is not one of those things. Yet a recent New York Times op-ed entitled “The Supreme Court Is Not as Politicized as You May Think” makes precisely this mistake.
The authors, Fordham University School of Law Professor Ethan Lieb and law student Nora Donnelly, write that the Court “operates much more functionally and consensually across its partisan divide than most people realize”—which, they say, “ought to figure into how Americans judge a court that often gets caricatured.” They base this conclusion on their study of 87 recent cases in which the Supreme Court interpreted a statute passed by a legislature. They found that 37 percent of such cases were decided unanimously. In non-unanimous cases, conservatives and liberals voted together in 77 of 87 majority opinions.
Lieb and Donnelly argue that this evidence “cuts against” the notion that the Supreme Court is “irredeemably political.” A “close look at the opinions of recent terms,” they write, reveals that “the Roberts court is closer to a 9-to-0 court than it is a 6-to-3 court.”
This conclusion makes a crucial error: By narrowing the scope of their study to exclude the Court’s most important work, Lieb and Donnelly functionally treat all the Court’s cases as if they are the same. Yet in the cases that matter most to the conservative policy agenda, the conservative supermajority reliably plays its role as the judicial arm of the Republican Party and the conservative legal movement. Declaring this Court “closer to a 9-to-0 court than it is to a 6-to-3 court” is roughly analogous to concluding that coconuts are more like people than plants, because both coconuts and people have hair and produce milk.
Limiting a “close look” at the Court’s docket to statutory rulings ignores, for example, the Court’s recent sweeping rewrites of constitutional law. In the three-year period Lieb and Donnelly examine, the Court has rescinded the constitutional right to abortion, created a super-right to carry and conceal guns, gifted Border Patrol agents a near-unreviewable license to kill, and twisted the Fourteenth Amendment into an unrecognizable shell of itself in order to ban affirmative action in colleges and universities. Given that these cases are the ones that most affect the lives of hundreds of millions of people, pointing out that they constitute a “small” proportion of the Court’s docket means little.
Lieb and Donnelly also exclude from their sample size cases from the Court’s shadow docket, on which it issues often-unsigned and unexplained orders with minimal briefing and no oral argument. Over the past several years, the Court’s conservatives have used this tool to signal dramatic shifts in the law: On the shadow docket, they brought back federal executions after a 17-year moratorium, denied Black Alabamians the chance to elect representatives of their choice to Congress, and allowed Texas to implement a depraved abortion bounty hunter law while Roe v. Wade was still ostensibly the law of the land. This is not “indicative of a pragmatic way” the Court operates “across the partisan divide.”
Even among the statutory cases on which the study focuses, the ten ideologically divided cases the authors suggest are unrepresentative are—you guessed it—the ones that are most important to the day-to-day lives of normal people. Among them are cases in which the Court hollowed out what remains of the Voting Rights Act, blocked the government’s efforts to protect renters from eviction during a deadly pandemic, stopped programs to prevent workers from catching or spreading COVID-19, shut down the Biden administration’s attempt to free people from crushing student debt, and barred the Environmental Protection Agency from protecting our rapidly-deteriorating environment. The study can only reach its conclusion that the public underappreciates the Court’s consensus by ignoring the things that matter most.
Perhaps most offensively, the piece trots out one of the most persistent and tiresome tropes in legal media: explaining to the public that it shouldn’t be concerned by the Supreme Court setting its civil rights on fire, smoke alarm and rights burned to a crisp notwithstanding. The existence of cases that feature unlikely ideological coalitions does not mean the Court is not dangerous. It just means that sometimes, the Court does boring work, too.
The authors concede that they “obviously can’t ignore” the Court’s highest-profile decisions, which, they allow, “should play a role” in assessing the Court’s legitimacy. But, they argue, a “look at the whole picture” reveals that most of the time, “ideology is not predetermining case outcomes.” Yes, when you exclude the primary ways the Supreme Court imposes its unpopular and dangerous agenda, the Supreme Court appears less partisan and dangerous. Similarly, if you look at all of the people Jeffrey Dahmer met and did not eat, his dietary habits become much less concerning.
