Where the Supreme Court Is and How It Got Here | Opinion

This was the year that the much-advertised, -expected, -feared, -longed-for conservative Supreme Court majority coalesced. After many false starts, misfires, and disappointments—going back to Richard Nixon's pledge during the 1968 presidential campaign to reverse the Warren Court's activism, or even Dwight Eisenhower's appointment of Earl Warren and Bill Brennan in the first place—conservatives will remember the 2021-22 term as the one when they finally, finally, had enough votes to make up for "defections."

Five years after Neil Gorsuch was confirmed, and in the second term with Amy Coney Barrett on the bench, the Republican-appointed majority asserted itself.

The statistics bear this out: 14 of the term's 60 opinions in argued cases involved a 6-3 split by party of presidential appointment, to which can be added 10 5-4 decisions, in all of which the three liberal justices—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—stuck together. So 40 percent of cases were "ideological," including the major decisions on school choice, religion, guns, vaccine mandates, environmental regulation, and, of course, abortion. Only 25 percent (15 cases) were unanimous.

These are remarkable numbers—the former quite high, the latter quite low—and very, very different from any year since I became a Court-watcher 15 years ago.

Moreover, when you look at those 5-4 cases, it wasn't always a story about the cagey Chief Justice John Roberts "switching sides." In all three 5-4 splits resulting in a conservative win, it was Justice Gorsuch who joined the liberals. And in the seven liberal results, every conservative justice except Samuel Alito moved over at least once, with Roberts and Brett Kavanaugh doing so four times.

Supreme Court
The US Supreme Court in Washington, DC, on June 29, 2022. - Nearing the end of their term, the Supreme Court has yet to release decisions on two major cases, including immigration and the Environmental Protection Agency. Mandel NGAN / AFP/Getty Images

What all of that numerology shows is that having a "margin of error" matters. There's just a lot of fluidity, reflecting the differing approaches to originalism—reading constitutional provisions for their original public meaning—and other text-, history-, and structure-focused interpretive methods on the Right. It's intellectually fascinating, but in practice comes together to make for stability in the law. It's a return to common-sense constitutionalism.

These developments also mean that, to a large extent, this is much less the "Roberts Court" than it has been since Justice Anthony Kennedy's retirement in 2018. But even though Kavanaugh is still the median justice (he and Roberts were both in the majority 95 percent of the time), we can't really call it the "Kavanaugh Court" either. If anything, this was the breakout term for Justice Clarence Thomas, the senior-most associate Justice, who got to assign the majority opinion whenever Roberts wasn't in full agreement—including in the Second Amendment case New York State Rifle and Pistol Association v. Bruen (which he took for himself) and the big abortion case Dobbs v. Jackson Women's Health (which he gave to Justice Alito).

The results of this term are all the more remarkable when you realize that none of them would've happened without a series of historical twists:

  1. Senate Majority Leader Harry Reid nukes the filibuster for lower-court judges in 2013, which Senate Minority Leader Mitch McConnell says Democrats will one day regret.
  2. Justice Ruth Bader Ginsburg declines to retire under President Barack Obama.
  3. Justice Antonin Scalia dies in February 2016, creating a rare election-year Supreme Court vacancy.
  4. McConnell pledges "no hearings, no votes" on a successor—and his caucus holds firm on that politically risky maneuver.
  5. Donald Trump wins the GOP nomination with a plurality in a fractured primary field.
  6. The open seat holds Republicans together, turning out cultural conservatives and populists and providing Trump with winning margins in key states.
  7. Trump empowers White House Counsel Don McGahn to pick judges who will be originalist-textualist and have spines.
  8. The Democrats, now led by Chuck Schumer, filibuster Gorsuch, leading to McConnell's thermo-nuking the filibuster for Supreme Court nominations.
  9. The Trump White House stands with Kavanaugh when Democrats launch last-minute sexual assault allegations.
  10. The Democrats' smearing of Kavanaugh triggers GOP Senate gains in the 2018 election.
  11. Justice Ginsburg dies on the eve of the 2020 election.
  12. Republicans push through the Barrett nomination.

Those unlikely events brought us to the point where the Constitution is now interpreted according to what it says rather than alternative theories of social justice-seeking. On such hinges does history swing.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court (updated paperback edition out this week), and writes the Shapiro's Gavel Substack.

The views expressed in this article are the writer's own.