A Bitterly Divided Supreme Court? Not According to the Numbers…

November 10, 2023
Not a Bitterly Divided Court | First Liberty Insider

by Ethan Tong and Jorge Gomez  • 4 min read

Is the U.S. Supreme Court bitterly divided? Are the justices at each other’s throats? Do they despise one another?

Some of the nation’s most radical groups and numerous politicians keep trying to paint a caricature of the Supreme Court as a bitter rivalry between conservative and liberal justices. Recall earlier this year when The Atlantic published an article titled “The Supreme Court Justices Do Not Seem to Be Getting Along.” It claimed that “collegiality is scarce, and tensions are apparent.”

The numbers show the opposite. They expose the lie about the Court being a partisan circus. 48% of the decisions this past term were unanimous. In fact, 9-0 decisions represented the most frequent outcome from the Court. That’s an increase since the 2021-2022 term, where only 29% were unanimous. Included in that 9-0 total was First Liberty’s Faithful Carrier case, where the Supreme Court unanimously ruled in favor of the Sabbath-honoring postal worker Gerald Groff.

Judicial activists and others pushing for radical changes to the Court won’t tell you this, but the amount of “polarized” 6-3 decisions (where the six conservatives voted over the three liberals) actually decreased this past term. There were 14 in 2021. That decreased to just five in 2022.

The most recent term included hot-button cases involving voting maps, federal election law, tribal rights, environmental protection, animal cruelty, religious employees and tech platforms. The data shows frequent crossover in votes between the liberal and conservative justices. They actually seemed to agree in many cases last term, even when these involved highly “controversial” issues.

Even still, one side insists on pushing a false narrative that the Supreme Court is hostile and extremely polarized. But why?

It all appears part of a bigger strategy to grab more power. No longer can one side rely on a liberal majority to rubber stamp its agenda. It really boils down to some who want to exert political control over our nation’s independent judiciary.

So, they desperately seek to undermine the Court’s authority and credibility in the eyes of the public. How? By portraying the Court as an antagonistic battlefield where the majority and the minority loathe one another.

This deceives the American people. It makes them think that the Court is “broken” or that it needs to be “restructured” or “reformed.” It’s how they often justify dangerous and constitutionally-suspect proposals like court-packing, “ethics” codes for justices, judicial term limits or even ending the court’s power of judicial review.

What’s more, the justices themselves have spoken out about the court being supposedly “fractured.” They’ve made clear that they are not only kind to each other, but friends.

Justice Amy Coney Barrett recently spoke at the University of Minnesota Law School. Her description of life on the Supreme Court is a striking picture of camaraderie and friendship. When asked about the “sharp differences” between the justices, Justice Barrett replied without hesitation: “The fire gets put on the page, but it is not expressed in interpersonal relationships.” She added, “Justices have lunch every day that we have oral argument and every day after conference.”

The interviewer pointed out the surprising friendship that conservative justice Antonin Scalia and liberal Justice Ruth Bader Ginsburg had shared. Justice Barrett agreed, pointing out that the Court had not lost that element of camaraderie. She hangs out a lot with Justice Kagan, and said Justice Kagan is both “smart and hilarious.”

She spoke about welcoming the newest member, Justice Ketanji Brown Jackson, onto the Court. After finding out Justice Jackson’s love for the musical Hamilton, Justice Barrett threw her a welcome party, hiring a Broadway actor to serenade her with her favorite songs.

She spoke about her own entrance onto the Court in the fall of 2020 and how kind all the sitting justices had been to her. Justice Sonia Sotomayor, she recounted, had prepared Halloween-themed bags of candy and given them to her to pass on to her children.

Justice Barrett concluded, “It’s really delightful to have people on the Court who I consider friends.”

This all points to a common theme: The Supreme Court is much more united than it is divided. There’s actually more agreement between justices, even among those we think could never be one the same side. The numbers prove this. Plus, the testimony of Justice Barrett and several others show us they’re real people who share strong friendships with each other, even when they do disagree on the law. The justices are a great example to us all that there is room for civility—even friendship—despite our differences.


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