Amid controversy, Supreme Court shows surprising unanimity in most rulings – so far

Casual observers may be surprised to learn that the justices this term so far have issued unanimous decisions in nearly 75% of their rulings.

But with about two-thirds of decisions this term still pending, the 6-3 conservative majority is more than likely to shrink that unanimity percentage. Several historic cases on the court’s docket deal with individual rights – specifically First Amendment issues – that have been a major theme this term and are an ideological flashpoint among the justices.

Two high-profile decisions that are pending and highly unlikely to be unanimous deal with access to the abortion drug mifepristone and former President Donald Trump’s claims of absolute immunity from prosecution.

The nation’s highest court has had unanimous decisions on 17 of the 23 cases.

By April 17 – the date of the last decisions before hearing final oral arguments for the term – the court had reached a more than 80% unanimity rate on the 18 cases it had decided. The last time the court had three or fewer dissents in its first 18 decisions was nearly a century ago, in 1934, Empirical SCOTUS found.

A court seeking consensus

Supreme Court experts say two factors may explain, in large part, the unanimity seen so far: a slow term and fewer cases on the docket.

The only things we know for sure are that the justices are “moving slowly and are generally in agreement,” Adam Feldman, creator of the blog Empirical SCOTUS, told Capital News Service.

A variety of factors can account for the court being slower in releasing decisions, including former President Donald Trump’s unexpected Colorado primary ballot case, in which his lawyers successfully argued to keep him on the ballot.

“Questions related to the election…those were sort of unexpected at the beginning of the term, and those take up a lot of time and resources. So that slowed things down as well and made this term more eventful,” Feldman said.

The court is considering a total of 60 cases this term, compared to 74 cases during its 2019-2020 term, Ballotpedia reported. In the early 1980s, the court decided more than double the number of cases it does now.

A fewer number of cases could indicate the justices’ desire to take on cases with national impact where splits might be more common, scholars said.

Since the overturning of Roe v. Wade in 2021, marking the end to the constitutional right to an abortion, the court has taken on a number of other contentious cases.

“When you have justices who are more in agreement, they think that they have other justices who agree with them on issues (so they) might take cases that are a little bit riskier in their eyes if they didn’t have the numbers,” Feldman explained. “So that might be one reason why we’ve seen such big cases in the last few years.”

The high court in recent years has been pushed and pulled by competing forces: while justices have looked for unity, the spotlight has been on highly controversial cases and criticism of some justices’ personal lives, scholars said.

“We’ve seen a high number of agreement among the justices in the cases that they have issued, high numbers in unanimity and relatively few dissents thus far,” said Christopher Schmidt, law professor at Chicago College of Law and co-director of the Institute on the Supreme Court of the United States. “The shadow of Dobbs is still playing (and probably) will play a role into the future – the justices (are) looking for opportunities to demonstrate agreement, to demonstrate that they’re not always dividing along predictable ideological lines.”

The court heard a number of oral arguments centering on ideological issues this term.

Consequential cases

The court heard two abortion cases this term. One case challenges access to the abortion pill mifepristone, and the other questions whether federal law preempts an Idaho statute that criminalizes most abortions in the state.

Another case, United States v. Rahimi, will test the constitutionality of barring gun ownership for those subject to domestic violence protective orders.

Justices tend to “veer off in ideological directions” in such cases, Feldman said.

“The conservative justices have a certain vision of individual rights, sometimes expanding or sometimes contracting,” Schmidt said. “All the justices do have a sense of institutional responsibility. The idea generally is that the institution of the court is best served by the court being selective in when they weigh in to highly controversial issues in controversial ways.”

Instead of the traditional 6-3 split between conservative and liberal justices that was common in high-profile cases last term, some scholars predict a 3-3-3 division is likely to be more frequent in coming rulings.

First Amendment issues

The justices heard a number of First Amendment cases, including two cases dealing with whether social media platforms can restrict users or posts based on the authors’ views.

Schmidt said that there is a general skepticism toward strong government regulation on the court, a thread that can be found among both the liberal and conservative justices.

“The court is kind of hesitant to draw these wide, even bright-line rules,” said Kevin Goldberg, First Amendment specialist at the Freedom Forum. “They are aware that all of their rulings have implications down the line, but they tend to take things very narrowly and discreetly right now in these First Amendment cases.”

Future expectations

As the court has lately become more “acutely aware of how it’s perceived,” Goldberg said, efforts to publicize the justices’ friendliness may influence the court’s priorities.

“Their efforts to publicize that is an indication that they see this as something that is especially important at a time when the court’s getting a lot of criticism about what they’re doing,” Schmidt said.

Something to look out for is which pattern is more likely to trend this term: the 6-3 split common in 2021 or the less fractured court in 2022, Feldman said.

Chief Justice John Roberts “has been trying to really urge the court toward more unanimity, toward fewer of these 6-3 divided cases,” Schmidt said. “This will be another moment to assess how effective he is in that effort.”