WASHINGTON, D.C. – U.S. Senate Republican Leader Mitch McConnell (R-KY) authored the following op-ed that appeared in Tuesday's print edition of The Washington Post.
Every June, the Supreme Court releases its most controversial opinions, and without fail, politicians complain about how those decisions came down. After cases such as King v. Burwell in 2015, which upheld the constitutionality of the Affordable Care Act, it was conservatives who voiced disappointment. More recently, liberals have taken up the cry.
Unfortunately, Democrats have moved from complaining about the Supreme Court's reasoning to questioning its independence. The Senate Democratic leader has threatened justices by name that they would "pay the price" for not ruling the way he wanted and has taken to deriding the entire institution as a "MAGA Supreme Court." Democrats on the Senate Judiciary Committee are trying to tell a coequal branch of government how to manage its internal operations, ostensibly to clean up its "ethics."
President Biden, for his part, has gravely proclaimed that the court is "not a normal court." On that count, he is correct — it is, as Article III of the Constitution put it, "supreme."
These escalating attacks from the left betray a fundamental misunderstanding of the court's structure and purpose. It is an ideologically unpredictable body that takes cases as they come and produces diverse outcomes. Recent rulings put that reality in stark relief.
During the latest term, according to calculations produced by my staff, the court reached a unanimous outcome in about 45 percent of the 57 cases it heard. Yes, the Biden administration lost in Axon Enterprise v. Federal Trade Commission, but so did the state of Alabama in Allen v. Milligan. When the court put a stop to union thuggery in Glacier Northwest v. International Brotherhood of Teamsters, it ruled 8-1. When it declined to stop Biden's outrageous open-borders policies, the margin was the same.
Of course, some cases are more wide-ranging than others. But only about 9 percent of this term's cases produced the 6-3 decision commentators use to warn of hyperpolarization on the court. Even fewer cases — only about 5 percent — had five Republican-appointed justices make up a 5-4 majority. On the other hand, about 16 percent of the cases were decided by a majority coalition of the court's three liberal justices joined by Republican-appointed justices.
Some "MAGA Supreme Court."
Evidence from this past term indicates that the court's defining characteristic isn't polarization. It is, instead, a politically unpredictable center.
Take Justice Brett M. Kavanaugh, for example. Those who have paid attention to his earlier career are familiar with his restrained, case-by-case jurisprudence. But those on the left who vilify Kavanaugh to this day might be surprised to learn that he was more likely this term to vote with Justice Elena Kagan (about 81 percent) than he was to vote with Justice Clarence Thomas (about 61 percent).
Justice Amy Coney Barrett, while more likely to side with the other conservatives than Kavanaugh was, was about equal when it comes to voting with Kagan (about 77 percent) and Thomas (about 72 percent). Of course, that did not stop Barrett from writing a highly technical and scholarly rebuttal to Kagan on the textualist justification of the "major questions doctrine" that has emerged in recent years as the most contentious and consequential issue in administrative law.
Even the court's right flank turns out to be slightly less predictable than its left. Thomas and Justice Samuel A. Alito Jr. — generally agreed to be the most conservative justices — voted with each other about 79 percent of the time. By contrast, Justices Sonia Sotomayor and Ketanji Brown Jackson voted with each other about 89 percent of the time. Fidelity to the Constitution as it is written means checking ideology at the door.
Some court watchers are quick to speculate about whether conservatives will break ranks and join the court's three liberals in key decisions. But few bothered to ask whether one or more of the liberal justices would break ranks and conclude that racial discrimination in university admissions is unlawful — or whether they would stand up to Biden's student loan power grab. This is more than just the liberal peanut gallery rooting for its preferred outcomes — it reflects the reality, borne out by the decisions of the just-ended term, that the proper role of the court is ideologically unpredictable.
When Democrats complain about a crisis at the court, the crisis they see is its refusal to reliably advance their party's priorities. They bemoan a conservative majority that puts jurisprudence above politics. Well, the evidence suggests that anyone who expects the court to function as a mere extension of legislative power is bound to be disappointed.
This latest term demonstrates that no party wins or loses before the Supreme Court every time. The court adheres to the Constitution and weighs each case on its merits. It should continue to do exactly that.
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