The Supreme Court — A Look Behind and Ahead

John Christie • September 17, 2019

The Supreme Court’s 2018 term is behind us and its 2019 term will begin on the first Monday in October, so let’s consider the results of the old term overall and what lies ahead for the new one. In a nutshell, the old term contained a few surprises and the new term promises to contain more hot-button issues than usual.

This issue we’ll look back; next issue we’ll look forward.

2018 Term

As the term began, the smart money said the Court would likely take a sharp turn to the right. With the retirement of Justice Anthony Kennedy, the Court’s long term “swing justice,” and his replacement by Trump nominee Brett Kavanaugh, there was ample reason for this supposition.

Indeed, with the benefit of hindsight, there was less unanimity among the justices in this term than during the 13 terms over which Chief Justice John Roberts has presided. Indeed, the number of close 5-4 decisions went up well over the average during that same period of time.

But the spoiler is that in only seven of the term’s 21 5-4 decisions were all of the Court’s five more conservative justices lined up against all of the Court’s four more liberal justices. Of even greater surprise, in 10 of the other 5-4 decisions, one or another of the Court’s more conservative justices joined with all of the Court’s four more liberal justices to make up a five-justice majority. (The four remaining 5-4 decisions consisted of an ideological smorgasbord of justices on both sides of the vote.)

The upshot is that the liberal side of the Court achieved more “victories” by the numbers in these closely divided cases than did the conservative side. Measured by results rather than by numbers, in the two most watched, most politically loaded cases of this term — the partisan gerrymandering case and the census case — the results were a tie. The conservative side of the Court prevailed in the former and the liberal in the latter, joined in that case by the chief justice.

Term-by-term, the voting results are clearly heavily affected by the nature of the cases the justices themselves decide to consider. As a result, one could not reasonably make long-term assumptions upon this or any one term’s outcome. However, overall it was a term that was far less predictable than most experts assumed.

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