After suffering one legal defeat after another in one state after another, President Trump, with a little help from his friends in Texas, decided to heave one last Hail Mary down the field in an audacious attempt to nullify the results of the 2020 election. Last week, the U.S. Supreme Court intercepted that pass and ran out the clock, hammering the final nail into a coffin that ought to have been buried many weeks before now.
But how could this happen? How could it be that a Supreme Court dominated by conservative thinkers, several of whom were handpicked by Trump himself, refuses to indulge his authoritarian fantasy of usurping power from his duly elected successor, president-elect Joseph R. Biden?
Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, we’ve been told, were put on the court not just to preserve its conservative flavor, but to ensure that the president wouldn’t encounter any unclearable hurdles while enacting his agenda. Justice Barrett in particular has been under heavy fire since the day the president officially nominated her to fill the seat vacated by the late Justice Ginsburg. Convinced that she would be inclined to side with Trump in the event of a contested election, Barrett’s critics pushed Democrats to do everything they could to obstruct her ascension to the Supreme Court.
Yet when the Texas lawsuit came before the court, Justice Barrett didn’t side with Trump. Neither did Justice Kavanaugh. Or Justice Gorsuch. All three of these Trump-appointed jurists—these three alleged harbingers of fascism, ordained by the spirit of Hitler himself to undermine the will of the American electorate—voted with the court’s liberal bloc to squash the Texas lawsuit like a helpless insect, effectively annihilating any chance that the radical right’s dystopian dream of a conservative autocracy will ever come to fruition.
That outcome was entirely predictable from the start, but you could be forgiven for having believed otherwise given the myriad commentary prophesizing the demise of democracy at the hands of an activist right-wing court.
Eventually, though, the court will render a decision that infuriates its left-wing critics, at which point the headlines will once again warn of its impending delegitimization. It happened in 2000 after the court issued its decision in Bush v. Gore, paving the way for George W. Bush to take his place behind the Resolute Desk. It happened again in 2010 when the court decided that the government cannot stop corporations or unions from spending their own money on political communications in Citizens United v. Federal Election Commission. And it may well happen again in the very near future given the long list of abortion cases waiting to be heard and the widespread presumption that Justice Barrett’s pro-life beliefs will encourage her to vote to uphold any anti-abortion regulations that come before the court.
But when it does happen again, the legitimacy of the court will continue to endure. It will endure because, despite what the cynics say, it is exceedingly rare for partisan lackeys or ill-intentioned judicial activists to be selected to serve on the highest court in the United States. If your only objective is to impose an ideological agenda on the nation, you will almost certainly fall into disrepute long before you end up on any presidential shortlists of potential Supreme Court nominees.
Were it true that the principal aim of the court’s conservative bloc has been to help the GOP consolidate power and defang its Democratic rivals, one would expect the division between the liberal and conservative justices to reveal itself much more frequently than it has. In reality, however, the dreaded 5-4 ideological splits that have frequently caught the attention of the press over the past 20 years have actually been the exception rather than the rule, as per a 2018 analysis from the Washington Post:
According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases.
When the court’s ideological divide is exposed, it’s often because of the liberal bloc’s tendency to stick together. During the 2019-2020 term, for instance, the court’s liberal bloc voted together in 80% of all cases, whereas the conservative justices voted together in 70% of cases.
During the 2018-2019 term, 20 out of 72 cases resulted in 5-4 decisions. Thanks to multiple defections by conservative justices, including 4 by Justice Gorsuch alone, the court’s liberal minority emerged victorious in 8 out of those 20 cases.
These numbers shouldn’t come as a surprise considering the propensity of certain conservative justices to break with their like-minded colleagues. Earlier this year, the aforementioned Justice Gorsuch—President Trump’s first of three appointments to the court—angered social conservatives across the country when he voted to apply anti-discrimination laws to LGBTQ workers. Justice Kavanaugh has thus far proven to be a reliably conservative voice on the court but has expressed reservations about rocking the boat too hard, which could signal an unwillingness to go against long-established precedents like the one created by Roe v. Wade. And Chief Justice John Roberts, who is perhaps best known for his shocking decision to uphold President Obama’s Affordable Care Act in 2012, sided with his liberal peers in several more cases this past year.
These aren’t the voting patterns you’d expect to see from a conservative bloc of justices routinely accused of ideological puppetry. Yet as the court’s dismissal of the Texas lawsuit indicates, these justices are no puppets. They are competent, principled jurists who execute their duties in good faith and take seriously their commitment to defend the Constitution and maintain the rule of law.
With Justice Barrett taking former Justice Ginsburg’s place, it’s reasonable to assume that the court will more frequently issue rulings that favor conservative interests. But the notion that the court’s legitimacy is in any way endangered by the ideological leanings of its conservative bloc deserves nothing more than to be laid to rest alongside President Trump’s aspirations for a second presidential term. The day may come when America finds itself cursed with an explicitly partisan, radical right-wing court, but that day has not yet arrived, and it’s far from certain that it ever will.