In an attempt to rationalize things we cannot change, some observers have recently claimed that the current U.S. Supreme Court is “squarely within America’s legal tradition” or “is not as polarized as you may think.” This is significantly wrong. And like any partial description, it is misleading if accepted as representative of the whole. When it comes to constitutional, as opposed to statutory, issues, our current Supreme Court is uniformly polarized.
The most important role of our Supreme Court is to interpret the Constitution. That’s because when it comes to the Constitution, the Supreme Court’s interpretation is the last word. It can’t be changed by legislation or executive order. Of course, most cases present only statutory or state law issues — and there the court’s role is also important. On federal statutory questions, or questions of state law that commonly arise in many states, the court tries to provide answers that can be applied uniformly across the country.
But there is a huge difference: If someone does not like the court’s answers on non-constitutional questions, statutes and state laws can be changed legislatively.
But no state or federal official can change constitutional interpretations that the Supreme Court imposes. Amending the Constitution is realistically impossible, so the Supreme Court is the final authority when it comes to constitutional interpretation. And in this area — constitutional law — the current justices are in fact consistently at loggerheads, with the same uniform majority voting to radically transform constitutional doctrines that have governed for decades.
The three “Trump justices,” appointed for life between 2017 and 2020 (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), have joined to form a consistent justice bloc, voting lockstep to radically change constitutional doctrines long thought to be “settled.” Conservative as well as liberal constitutional scholars agree that the current justices are “polarized” on constitutional issues, even while they vehemently debate whether the constitutional changes are “correct.” Here are a few recent examples:
Privacy, medical choices, and abortion: The 2022 Dobbs decision that overruled Roe v. Wade transformed constitutional analysis that had governed for half a century. Five justices imposed a polarized “no constitutional right exists” view — the three Trump appointees plus previous outliers Thomas and Alito.
Firearms rights: The 2022 Bruen decision entirely changed the constitutional analysis for deciding Second Amendment cases, substituting history alone for any other analysis. The same five-justice majority signed the decision, with four liberal dissenters: Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer (now replaced by Justice Ketanji Brown Jackson, with no change in the voting pattern, while conservative appointee Barrett has replaced Ginsburg).
Equal protection: In SFFA v. Harvard and UNC (2023), the same majority overruled the constitutional doctrine, in place since 1978, that universities may give an admissions “bump” for minority racial identity within the Constitution’s Equal Protection Clause. It was the same polarized six-justice array.
Free speech: Also just last term, in 303 Creative v. Elenis, the same majority ruled, for the first time in 60 years, that a same-sex-discriminating commercial “artist” has a First Amendment right to claim exemption from anti-discrimination statutes.
Religion: Finally — and this is just one example of multiple doctrine-changing decisions — in Kennedy v. Bremerton School District (2022), the same six justices found a constitutional “right” of a high-school football coach to conduct a well-attended “private” prayer session at midfield of a taxpayer-supported public school. That decision declared that another half-century-old precedent (Lemon v. Kurtzman) is now “abandoned.”
Whether the vote is 5-4 or 6-3, the uniform pattern is clear: the same court majority today votes uniformly to reverse longstanding constitutional doctrines. And because the Constitution’s super-majority barrier to amendment (Article V) is unachievable, Congress and state legislatures can do nothing about it.
This polarized voting pattern in constitutional cases is unmistakable, as well as unchallengeable and unchanging as long as these justices live. It’s true that on more malleable statutory issues the justices are sometimes less predictable; indeed, in criminal law decisions over the past three years the court has actually decided more for the defense side than for the government. But any commentary that ignores the current justices’ lockstep voting pattern in constitutional cases fails to present an accurate reality of our Supreme Court today.
The current Supreme Court is not “moderate” or somehow unpredictable — not in constitutional cases. In fact, the Supreme Court has not seen such a uniform polarized majority since President Franklin D. Roosevelt threatened to “pack the court” to change it almost 90 years ago. Imagining the current justices to be unpolarized or unpredictable, in constitutional cases, conveys an equanimity about the current Supreme Court that is simply not true.
Rory Little is a constitutional and criminal law professor with UC Law San Francisco. He moved to Greenfield two years ago and is very happy about it.