The Washington PostDemocracy Dies in Darkness

The complicated interplay of agreement on the Trump-appointee-heavy Supreme Court

Members of the Supreme Court pose for a group photo on April 23. (Erin Schaff/The New York Times/AP)

The Supreme Court term that ended last week was the first in which three of the sitting justices were appointed by former president Donald Trump. During his 2016 campaign and well into his presidency, Trump assured his base that his appointments to the country’s highest court would share his and their values. While most presidents tended to shy away from publicly embracing litmus tests, Trump hyped one in particular: Trumpism.

The challenge for Trump, though, was that there wasn’t a deep bench of judges committed to his idiosyncratic politics. What there was instead was a group of conservative judges vetted by conservative organizations like the Federalist Society to whom Trump seems largely to have deferred. So by the time he left office, he didn’t get a court willing to, say, intervene in a fairly determined election to wrench power away from the Democrats. Instead he got a court that was sympathetic toward conservative and Republican views of voting access.

Data collected by SCOTUSblog shows just how complex the web of agreement between each justice was on cases where the positions of the justices were broken out. (The most recent addition to the court, Justice Amy Coney Barrett, didn’t participate in every decision, mostly because she wasn’t on the bench when the cases were argued.)

The two justices who were most often in agreement were Chief Justice John G. Roberts Jr. and Trump appointee Justice Brett M. Kavanaugh. They were on the same side of 94 percent of decisions. The justices who agreed least were two at opposite ends of the ideological spectrum: Sonia Sotomayor and Samuel A. Alito Jr.

You can see the ideological divide here. Thin connections between most of the liberal justices (orange) and the conservative ones (purple). Relatively thick ones within those groups. But those aren’t uniformly true. Some of the liberal-to-conservative binds are thicker than others. Kavanaugh and Roberts, for example, have fairly robust ties to the liberals as well.

The raw numbers show how each justice compares. On average, Roberts agreed with the liberals on 71 percent of decisions — a rate of agreement that might seem surprising, given the context. Roberts’s average agreement rate between all justices was 79 percent. That’s relatively high, but is about in line with all three Trump appointees (Kavanaugh, Barrett and Neil M. Gorsuch). The more individual conservatives are the more senior ones: Clarence Thomas and Alito. They agreed with everyone else on average at about the same rate as liberals Stephen G. Breyer and Elena Kagan. The most independently voting justice was Sonia Sotomayor.

Justice
Appointed by
Liberals
Everyone
Conservatives
Majority
Roberts
W. Bush
71%
79
83
91
Thomas
H.W. Bush
59
73
81
81
Breyer
Clinton
92
74
67
76
Alito
W. Bush
57
75
85
83
Sotomayor
Obama
90
68
60
69
Kagan
Obama
90
73
67
75
Gorsuch
Trump
66
79
87
90
Kavanaugh
Trump
71
81
87
97
Barrett
Trump
65
79
87
91

As a result, Sotomayor was also least likely to be part of the majority. The justice who was most often a member of the majority was Kavanaugh, who was part of 97 percent of majority opinions.

In a way, there were five blocs of justices in the most recent term. Sotomayor, at far left. Kagan and Breyer as the other two liberals. Roberts and Kavanaugh in agreement and, often, the majority. Gorsuch and Barrett agreeing with the conservatives as much as Kavanaugh but less often with the liberals. And then Alito and Thomas serving as the opposite pole to Sotomayor.

This is a conservative court, with Trump’s appointees joining Roberts the overwhelming number of cases. It is not, however, a court that’s driven by Trump’s appointees in a Trumpian direction. But, again, there’s no Trumpian ideology that can be used as a litmus test in the first place.

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