The Supreme Court has a conservative supermajority. So why don't conservatives always win?

In one closely watched case, for example, the court will decide whether former president Donald Trump can be prosecuted for attempting to overturn the 2020 election results. The issue in another is whether the Food and Drug Administration's approval of the abortion drug mifepristone was lawful and thus whether it can be prescribed online and distributed by mail. In one of several gun-related cases, the justices are weighing whether, under the Second Amendment, individuals subject to a domestic-violence restraining order can be barred from owning a firearm. In Grants Pass v. Johnson, the issue is whether a city can prohibit homeless people from camping and sleeping outdoors in public.

In these and other lawsuits, many conservatives and Republicans would tend to favor one outcome, while liberals and Democrats would be likelier to favor the opposite. Should that make it easy to predict how the cases will be decided? After all, six of the high court's nine justices are conservatives who were appointed by Republican presidents. Liberal Democrats for years have bewailed the conservative "supermajority" on the court, accusing it, to quote Rolling Stone, of "reshaping our laws and society according to their reactionary, far-right vision." Many leading Democrats have pushed bills in recent years to "pack" the Supreme Court in order to weaken the influence of the current conservative majority. Meanwhile, law professors Joseph Fishkin and William E. Forbath wrote in a New York Times essay, "liberal lawmakers should view the court primarily as a hostile political actor with its own distinctive political incentives."

If such criticism from the left is accurate, every Supreme Court term should yield a bumper crop of decisions that Republicans cheer and Democrats lament. Case after case should be decided by 6-3 majorities, with conservative justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas routinely rolling over liberal justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor.

Yet that isn't how the court works, no matter how useful it may be for political candidates and partisan spinners to insist otherwise.

Certainly there have been historic Supreme Court decisions in recent years that represented major defeats for liberals and big wins for conservatives. Among them were the 2022 Dobbs ruling that overturned Roe v. Wade; the holding in Students For Fair Admissions, which struck down racial preferences in college admissions; and 303 Creative v. Elenis, which concluded that a web designer could not be required to create sites celebrating same-sex weddings in violation of her values.

But even a court dominated by Republicans and conservatives regularly hands down rulings that make Democrats and liberals rejoice.

Just last month, the Supreme Court upheld the legitimacy of the Consumer Financial Protection Bureau's unique funding arrangement. The CFPB, a federal agency, was the brainchild of Senator Elizabeth Warren, who conceived the idea of having it draw funds directly from the Federal Reserve, bypassing the congressional appropriations process. Leading voices on the right, such as The Wall Street Journal's editorial board and George F. Will, dean of America's conservative commentariat, thundered that such a design was flagrantly unconstitutional. More than 130 Republican members of Congress filed a friend-of-the-court brief urging the justices to strike it down; other briefs were submitted by conservative think tanks, the US Chamber of Commerce, and Mick Mulvaney, who headed the Office of Management and Budget under Trump.

Yet by a 7-2 majority, the court spurned the conservatives' arguments and upheld the CFPB's funding arrangement. The ruling was cheered by Democrats and financial industry critics. The American Prospect, a left-wing journal, hailed it as a victory for expansive government. Warren was overjoyed. "Woo-hoo!" she exulted. "The Supreme Court followed the law and the CFPB is here to stay. This is so terrific!"

The majority opinion was written by Thomas, whom Warren has reviled for "corruption" and "unconscionable" behavior. If he were really a reactionary zealot motivated by politics and ideology, though, would he have handed such a victory to one of his most vituperative foes? Isn't it more reasonable to assume that what motivated Thomas in this case is what motivates him — and all his colleagues — in every case, namely, a commitment to render justice in keeping with the Constitution?

In a fascinating analysis for Politico, court-watchers Sarah Isgur and Dean Jens demonstrate how little can be predicted from the high court's 6-3 conservative ascendancy. In the 2022-23 term, the justices decided 57 cases. Only five of those decisions were 6-3 splits, with the conservatives on one side and the liberals on the other. By far the greatest number of cases, 27, were decided unanimously; another five were 8-1 decisions.

In nearly 90 percent of the court's decisions, at least one of the three Democratic-appointed justices was in the majority. Indeed, Isgur and Jens write, "Justices Jackson, Sotomayor, and Kagan were all more likely to be in the majority than either Samuel Alito or Clarence Thomas." Moreover, the liberals do not generally vote with their fellow liberals: In the non-unanimous cases last year, they lined up together less than one-fourth of the time. And the conservatives? They're even less likely to maintain a united front — the six Republican-nominated justices voted together only 17 percent of the time. The justices least likely to be on the same side last term were Kagan and Alito, yet even they joined forces 61 percent of the time in cases that were not unanimous.

These statistics shift a bit from term to term, but the pattern is an enduring one. How the court will vote in most cases cannot reliably be predicted from the party affiliation of the justices or the politics of the president who nominated them. For politicians seeking to motivate their supporters, it may be useful to caricature Supreme Court justices as disreputable hacks. But it isn't honest. And it certainly isn't fair to the nation's highest court.

Under the system devised by the Constitution's framers, politics plays an inescapable role in how members of Supreme Court are chosen. In earlier times, many justices remained politically active even after ascending to the court, often working to promote the interests of their party. Today, however, the court's liberals and conservatives alike generally steer clear of political tribalism. They show little deference to the president who nominated them, as Trump has complained. To read Supreme Court opinions is to realize how seriously they take their obligation to "faithfully and impartially" apply the Constitution. That's worth keeping in mind as this month's cascade of decisions gets underway.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission."

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