6-3 is the new SCOTUS 5-4

What this means? The Court’s most common split vote this term was six justices in the majority and three justices in dissent. The most frequent six justices in the majority were the Court’s conservative justices and the most frequent in the dissent were the three liberal justices.

Why this matters? The Court’s biggest cases came in the 2021/2022 Term came down to this vote. This includes Dobbs (abortion), NY Rifle (guns), Kennedy and Carson (religious liberty) and WV v. EPA (Clean Air Act).  When at least five of the conservative justices voted together there was no opposing vote that could decide the outcome to a case. These big cases though all had a supermajority of six votes.

What do the numbers show? 13 of the 18 six to three decisions this term came down along ideological lines. This is up from 10 of 18 six to three decisions last term. Last term also had much less ideologically charged cases on the docket with the biggest cases dealing with voting rights issues (Brnovich), campaign donations (Americans for Prosperity Foundation), and unions (Cedar Point).

What’s the 5-4 piece? Prior to Justice Barrett joining the Court for the 2020 term, the Court had four liberal justices (then including Justice Ginsburg).  Prior to Barrett joining the Court, the last major shift was when Justice Kennedy departed at the end of the 2017 term and Justice Kavanaugh was confirmed in his place.  In Justice Kennedy’s last term though 74% of the 5-4 cases came out in the conservative justices favor with no 5-4 cases decided in the liberal justices’ favor (the other 26% of 5-4 decisions came down along mixed ideological lines). In the three terms preceding 2017 though the liberal justices secured more than 50% of the 5-4 decisions.

What does this mean moving forward (strategic retirements)? There is no end in sightfor this conservative supermajority. Justice Thomas is the oldest justice on the Court at 74 and Justice Alito is the second oldest justice at 72. Justice Breyer just retired at age 83 and Justice Stevens lasted on the Court until he was 90. Also, many justices including Breyer, strategically plan their retirements for when a like-minded president is in office. Breyer waited for Biden, Kennedy for Trump, Souter, Stevens for Obama, etc. If the Court’s conservative justices can hold out until the next Republican President then they can continue to secure a supermajority vote on the Court for the foreseeable future.

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