If you’re concerned about the ideological balance of the current Supreme Court, you’re not alone. After the retirement of nearly-centrist Justice Anthony Kennedy last year, followed by President Trump’s nominations of highly-conservative Justices Neil Gorsuch and Brett Kavanaugh, the court has swung considerably further right and cemented a conservative majority. This change has major potential implications for a variety of controversial issues, including abortion and affirmative action.
However, the fact that the majority of justices are ideologically conservative does not necessarily translate into decisions along party lines. As several recent — and perhaps surprising — Supreme Court rulings have shown, the justices aren’t simply voting along party lines. Fears that a conservative majority will undermine the legitimacy of the court have, at least for now, suffered a blow. These decisions should reassure all of us, regardless of party affiliation, that the court still remains a non-partisan institution.
In a racial gerrymandering case, the Court ruled that redrawn lines in several legislative districts in Virginia had to stay. The vote was 5-4, with a mix of liberals and conservatives on both sides. Though the decision benefited Democrats, conservative justices Clarence Thomas and Neil Gorsuch sided with the majority, alongside liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Other rulings showed a similar pattern. The court recently voted to uphold Virginia’s uranium mining ban, ruling that the federal Atomic Energy Act did not override the state’s ban on mining, and thus maintaining the idea of state sovereignty. In the 6-3 vote, conservatives Gorsuch, Thomas and Kavanaugh joined the majority alongside liberals Ginsburg, Sotomayor and Kagan. Or take the case of a clothing company named FUCT — pronounced by sounding out the letters — that was banned from trademarking its name. In a 6-3 decision, liberals Kagan and Ginsburg joined conservatives Samuel Alito, Thomas, Gorsuch and Kavanaugh in arguing that denying the company a trademark violated the First Amendment. In all these cases, the majorities cut across the usual liberal-conservative divide, demonstrating that, even in an age of partisanship, the justices continue to think for themselves.
These rulings show a Supreme Court carrying out its intended role as an independent judicial arbiter. The cases, especially the racial gerrymandering case, reveal that the justices don’t feel the need to pay some sort of homage to the president or party that selected them.
Yes, I acknowledge that there will still be many traditional ideological splits in future Supreme Court cases. Right after the court broke with party lines on a number of cases, it also issued a decision split 5-4 along ideological lines — and that decision reinforced states’ ability to gerrymander electoral districts. There’s no denying that the ideologies of the justices have an impact on court cases. That impact is the reason why Trump and his predecessors have nominated justices in a calculated way to increase the chances that the Court will make decisions in favor of a certain party’s policies.
But still, even if justices tend to uphold either liberal or conservative policies, their inclination stems more from legal thinking than from partisan commitment.
Ideology matters, but it’s not everything. It doesn’t predetermine the results of every case. In any event, we should find it reassuring that, at least in its recent decisions, the Supreme Court is still voting and making judicial decisions based on legal scholarship, rather than on partisan ideology.
