Of all the ink spilled and soundbites recorded railing into the current iteration of the Supreme Court, nothing quite epitomizes the spirit of the prevailing critique than a July cover of The New Yorker. Posed for a portrait, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson look forward cool and defiantly, while the conservative appointees—Justices John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—all look identical, because they all have President Donald Trump’s face.
The gist is simple. That issue focused “on what appears to many to be an existential threat to democracy,” the magazine wrote, which is “the far-right shift of the Supreme Court, and the conservative movement’s plans to commandeer it.”
That critique has persisted for some time now. Some decisions today from the Court help show, once again, why it is neither fair nor accurate.
First up was Ames v. Ohio Department of Youth Services, in which the justices reversed a lower court decision and sided with a woman who said she was the victim of reverse discrimination, ruling that members of a majority group do not have to clear a higher bar to prove such claims. The opinion, written by Jackson, was unanimous.
Next came Smith & Wesson Brands, Inc., et al. v. Estados Unidos Mexicanos, the lawsuit brought by Mexico against gun manufacturers that the country said had contributed to an illegal flow of weapons across the border, exacerbating cartel violence. The Court concluded that the complaint did not “plausibly allege that the defendant gun manufacturers aided and abetted gun dealers’ unlawful sales of firearms to Mexican traffickers,” and thus blocked the suit. The opinion, written by Kagan, was unanimous.
Then there was Catholic Charities Bureau, Inc. v. Wisconsin Labor and Industry Review Commission, in which the Court confronted a Wisconsin Supreme Court decision that denied Catholic Charities Bureau a tax exemption available to religious organizations because the group is not “operated primarily for religious purposes” and serves multiple faiths, as opposed to just Catholics. The justices rejected that conclusion and said it violated the First Amendment. The opinion, written by Sotomayor, was unanimous.
Three remaining rulings also came down unanimously or near unanimously. That may be surprising to those who have heard over and over that the Court is hopelessly ideological and partisan. But agreement on contentious topics—or heterodox overlap in places you would not expect—is not a new phenomenon.
Perhaps most emblematic of that last year was the Court’s decision in Fischer v. United States, in which the Court ruled 6–3 that many January 6 defendants had been improperly charged with obstruction.
“Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis,” wrote Jackson, who joined the majority. “We recognize this intuitive fact—that there is a certain category of conduct the rule is designed to prohibit—because we recognize, albeit implicitly, that the drafters of this rule have included these particular examples for a reason. We understand that, given the preceding list of examples, this rule was adopted with a clear intent concerning its scope.” Barrett wrote the dissent.
There are many such examples. More recently there are the Court’s rulings making clear that people Trump seeks to deport using the Alien Enemies Act are entitled to due process, a view that every one of Trump’s appointees has taken. It may be more intoxicating to default to tribal lines and to picture each conservative justice as a Trumpian clone. Reality, however, tells a different story.
