https://www.nytimes.com/2023/07/01/us/supreme-court-liberal-conservative.htmlfi
Along With Conservative Triumphs, Signs of New Caution at Supreme Court
Chief Justice Roberts delivered both landmark victories for the right and significant rulings in which he forged
alliances with the liberal justices.
By Adam Liptak Graphics by Alicia Parlapiano
Reporting from Washington
July 1, 2023, 12:42 p.m. ET
The Supreme Court ended its term this week in familiar fashion, issuing blockbuster conservative decisions on affirmative action, gay
rights and student loans that divided along partisan lines, with the court’s three Democratic appointees in dissent.
While not quite as stunning as last June’s decisions eliminating the right to abortion and expanding gun rights, the new rulings were of a
piece with them and were a further indication that the court remains receptive to the conservative legal movement’s agenda, including
cutting back on a progressive conception of civil rights and frustrating President Biden’s initiatives.
But the entire story of the most recent term is considerably more complicated than that of the previous one, which had seemed to establish
an unyielding conservative juggernaut characterized by impatience and ambition — and built to last.
A year later, the court remains deeply conservative but is more in tune with the fitfully incremental approach of Chief Justice John G.
Roberts Jr., who is attentive to his court’s legitimacy, than with the take-no-prisoners approach of Justice Clarence Thomas. The chief
justice’s strategy — and votes — produced a fair number of liberal victories.
“Chief Justice Roberts seems to be getting at least some of the conservative majority back into harness on incremental moves,” said
Pamela S. Karlan, a law professor at Stanford.
Indeed, the term that just ended was something of a triumph for the chief justice, who just a year ago seemed to be losing power, having
failed to persuade a single colleague to join his compromise position in the case that did away with the constitutional right to abortion.
When the latest term started in October, Justice Thomas appeared to have gained control of the court for the first time in his more than 30year
tenure, said Richard J. Lazarus, a law professor at Harvard.
“Those tables have dramatically turned,” Professor Lazarus said. “Although the chief justice has struggled mightily under rising public
expectations to address ethical issues within the court, mostly focused on Justice Thomas, the chief rather than Thomas remains the most
influential justice on the court in terms of the outcomes in the court’s opinions.”
Indeed, Chief Justice Roberts was in the majority in divided cases decided by signed opinions 86 percent of the time, second only to Justice
Brett M. Kavanaugh, at 90 percent. Justice Thomas was last by this measure, at 55 percent.
How Often Each Justice Was in the Majority, This Term and Last
This term, the court’s liberal justices were significantly more likely than last term to be in
the majority in nonunanimous decisions.
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LIBERAL BLOC
2021 term 2022
Sotomayor
Kagan
40% 50% 60% 70% 80% 90%
CONSERVATIVE BLOC
Kavanaugh
Roberts
Barrett
Gorsuch
Alito
October Term 2022
Note: Justice Jackson voted in the majority 66 percent of the time this term but is not shown because she was
not on the bench during the 2021 term. • Source: Lee Epstein, University of Southern California, Andrew D.
Martin, Washington University in St. Louis, and Kevin Quinn, Emory University, using the Supreme Court
Database
Thanks largely to alliances with Chief Justice Roberts and one or more of President Donald J. Trump’s three appointees — Justices
Kavanaugh, Neil M. Gorsuch and Amy Coney Barrett — the court’s three liberals were in the majority in a considerable number of
important cases. They included ones on the Voting Rights Act, immigration, the role of state legislatures in elections and Native American
rights.
The three liberals were on the winning side more often than the court’s two most conservative members, Justices Thomas and Samuel A.
Alito Jr.
“Looking across the entire docket — not just the term’s last two days — the data show a shift from the most conservative and aggressive
court in modern history to one that has moderated,” said Lee Epstein, a law professor and political scientist at the University of Southern
California. “Perhaps the justices — especially Roberts, Barrett and Kavanaugh — have faced up to the public’s waning confidence and
decided to self-adjust. The red team versus the blue team in case after case isn’t a good look.”
How Often Each Justice Took a Liberal Position, This Term and Last
All but two of the most conservative justices voted more liberally in nonunanimous
decisions this term.
Note: Justice Jackson voted for a liberal outcome 79 percent of the time this term but is not shown because
she was not on the bench during the 2021 term. • Source: Lee Epstein, University of Southern California,
Andrew D. Martin, Washington University in St. Louis, and Kevin Quinn, Emory University, using the
Supreme Court Database
The percentage of unanimous decisions grew, by a large margin, to 47 percent from last term’s 28 percent. That, too, is evidence of efforts
to forge consensus.
Some conservatives have been frustrated. Gov. Ron DeSantis of Florida, a Republican and a rival to Mr. Trump for the Republican
presidential nomination, recently said that none of Mr. Trump’s three appointees “are at the same level of Justices Thomas and Justice
Alito.”
Josh Blackman, a law professor at South Texas College of Law Houston, said the critique had force from a conservative perspective, and
he questioned the adequacy of the Trump administration’s vetting process, which relied on lists of potential nominees compiled by lawyers
with ties to conservative legal groups like the Federalist Society and the Heritage Foundation.
“For different reasons, Justices Gorsuch, Kavanaugh and Barrett have and will continue to disappoint conservatives,” Professor Blackman
said. “I don’t know that future ‘short lists’ are worth much if they are made by the same people who generated the last batch of lists.”
Still, some of the biggest victories for liberals came in cases where the court rejected assertive arguments and merely maintained the
status quo.
“There were instances where conservative litigants overplayed their hand and lost out,” said Elizabeth Wydra, the president of the
Constitutional Accountability Center, a liberal group.
And even some of those victories came with caveats.
Alito
Thomas
40% 50% 60% 70% 80% 90%
LIBERAL BLOC
2021 term 2022
Sotomayor
Kagan
0% 20% 40% 60% 80%
CONSERVATIVE BLOC
Roberts
Kavanaugh
Barrett
Thomas
Gorsuch
Alito
0% 20% 40% 60% 80%
In one, Justice Barrett, writing for seven justices, rejected an equal protection challenge to the Indian Child Welfare Act, a federal law that
seeks to keep Native American children with their tribes. But she did so on the ground that the challengers lacked standing. In a
concurring opinion, Justice Kavanaugh stressed that the issue remained alive and that the court could address it in a later case.
Similarly, in a surprise win for minority voters in Alabama in which Chief Justice Roberts was joined by Justice Kavanaugh and the three
liberals in rejecting a challenge to the Voting Rights Act, Justice Kavanaugh issued a concurring opinion saying that it was possible that
“the authority to conduct race-based redistricting cannot extend indefinitely into the future.”
Regardless, data compiled by Professor Epstein, Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of Emory
University all point in the same direction: In the scheme of things, the liberal wing had a reasonably good term.
How Often Conservative and Liberal Justices Were in the Majority
While the justices nominated by Republicans continued to be in the majority more often
on average, the gap with liberal justices was much smaller than last term.
Source: Lee Epstein, University of Southern California, Andrew D. Martin, Washington University in St.
Louis, and Kevin Quinn, Emory University, using the Supreme Court Database
The three liberals as a group were in the majority in divided decisions at a rate of 64 percent, compared with 73 percent for the six
conservatives. In the previous term, the liberals trailed the conservatives by 34 percentage points, the largest gap in at least a decade.
Alliances shifted. Chief Justice Roberts voted with Justice Elena Kagan, a liberal, about 62 percent of the time, a 14 percentage-point jump
from the last term, and with Justice Thomas just 48 percent of the time, a 21-point drop. Justice Kavanaugh voted with Justice Ketanji
Brown Jackson, appointed to the court by President Biden, about 62 percent of the time and with Justice Thomas less than 45 percent of
the time.
How Alliances Shifted
Chief Justice Roberts and Justice Kavanaugh, who represent the court’s ideological
middle, tended to agree more with the liberal justices and less with their fellow
conservatives than they did last term.
100%
Justices appointed
by Republicans
75% 73%
64%
50%
Justices appointed
by Democrats
25%
’10 ’12 ’14 ’16 ’18 ’20 ’22
How often Roberts agreed with ...
2021 term 2022
LIBERAL BLOC
Kagan
Sotomayor
CONSERVATIVE BLOC
Kavanaugh
Barrett
Alito
Gorsuch
Thomas
40% 60% 80% 100%
How often Kavanaugh agreed with ...
Note: Justice Jackson agreed with Justice Kavanaugh 62 percent of the time, and with Justice Roberts 59
percent of the time. She is not shown because she was not on the bench during the 2021 term. • Source: Lee
Epstein, University of Southern California, Andrew D. Martin, Washington University in St. Louis, and Kevin
Quinn, Emory University, using the Supreme Court Database
Roman Martinez, a Supreme Court specialist with Latham & Watkins, said that “members of the conservative bloc — and especially the
chief justice and Justice Kavanaugh — found common cause with the more liberal justices on a surprising range of issues.”
Another way to assess the term is to look at the American Civil Liberties Union’s success rate. The group filed briefs in 18 argued cases and
was on the winning side in 11 of them.
David Cole, the group’s national legal director, said losses in the affirmative action and gay rights cases were “unprecedented setbacks for
equality.”
“But beyond that,” he said, “civil liberties and civil rights fared surprisingly well this term — far better than anyone predicted. The court
avoided partisan divides and reached rights-protective results in important cases involving redistricting, Native American rights, victims
of discrimination, prisoners’ access to court, social media, free speech and immigration enforcement.”
“What we saw,” he said, “was a reversion to the mean.”
Most of the data in this article concerns signed decisions issued by the court after full briefing and argument. But the court also grew more
cautious in the terse orders it issued in response to emergency application on what critics call the shadow docket.
The court allowed a commonly used abortion pill to remain available, blocking a ruling from a federal judge in Texas over the dissents of
Justices Thomas and Alito. It let a transgender girl compete on the girls’ cross country and track teams at her middle school in West
Virginia while her appeal moved forward. Again, Justices Thomas and Alito dissented.
The docket for the court’s next term, which starts in October, is still taking shape. On Friday, the court agreed to decide whether the
Second Amendment allows the government to disarm people subject to restraining orders for domestic violence.
The court is also set to decide two important administrative-law cases. One asks the court to overrule the Chevron doctrine, which
requires courts to defer to administrative agencies’ interpretations of federal statutes. The other could hobble the Consumer Financial
Protection Bureau.
LIBERAL BLOC
Kagan
Sotomayor
CONSERVATIVE BLOC
Roberts
Barrett
Alito
Gorsuch
Thomas
40% 60% 80% 100%
The Supreme Court issued blockbuster conservative decisions on affirmative action,
student loans and gay rights, but the court’s liberals ended up in the majority in several
significant decisions. Erin Schaff/The New York Times
In the last decision of the current term, on student loans, Chief Justice Roberts concluded his majority opinion, which rejected a key
initiative of the Biden administration, with an appeal to the public that seemed to reflect a mix of optimism, naïveté and deep attachment
to a court under siege.
He said that sharp exchanges among the justices were the products of good-faith disputes.
“We do not mistake this plainly heartfelt disagreement for disparagement,” he wrote. “It is important that the public not be misled either.
Any such misperception would be harmful to this institution and our country.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The
Times in 2002. @adamliptak • Facebook
Alicia Parlapiano is a graphics editor and reporter covering politics and policy from Washington. She joined The Times in 2011 and previously worked at The Washington Post
and the Pew Research Center. @aliciaparlap
A version of this article appears in print on , Section A, Page 1 of the New York edition with the headline: IN COURT RULINGS, THE CHIEF JUSTICE EXHIBITS HIS SWAY
6/30/23, 8:46 PM 2023 Supreme Court Decisions: Affirmative Action, Student Loans and More - The New York Times
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https://nyti.ms/43xL9Bt
The Major Supreme Court Decisions in 2023
By Adam Liptak and Eli Murray Updated June 29, 2023
The Supreme Court — dominated by a 6-to-3 conservative majority,
including three justices appointed by President Donald J. Trump —
lurched to the right last June in blockbuster decisions on abortion, guns,
religion and climate change. Its record in the current term, which started
in October, has so far been more mixed, with the court’s three liberal
members voting with the majority, for instance, in important cases on
Native American adoptions and minority voting rights. Still, its
conservative supermajority prevailed in blockbuster decisions on
affirmative action, student loans and gay rights.
According to a survey conducted in April by researchers at Harvard,
Stanford and the University of Texas, the public is often — but hardly
always — divided along partisan lines on how the court should rule in the
term’s major cases.
Affirmative Action
6-3DECIDED
JUNE 29
The court ruled that race-conscious admissions policies at
Harvard, a private institution, and the University of North
Carolina, a public one, were unlawful.
Liberal bloc
Conservative bloc
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Roberts Kavanaugh Barrett Gorsuch Alito Thomas
Where the public stands
Private colleges and universities
should be able to use race as a
factor in admissions
Private colleges and universities
should not be able to use race as a
factor in admissions
All 31% 69%
Democrats 42% 58%
Independents 28% 72%
Republicans 22% 78%
Question wording: Some people think that private colleges and universities should not be able to
use race as a factor in admissions. Other people think that they should be able to. What do you
think? | Source: SCOTUSPoll
Public colleges and universities
should be able to use race as a
factor in admissions
Public colleges and universities
should not be able to use race as a
factor in admissions
All 26% 74%
Democrats 40% 60%
Independents 25% 75%
Republicans 12% 88%
Question wording: Some people think that public colleges and universities should be able to use
race as a factor in admissions. Other people think that they should not be able to. What do you
think? | Source: SCOTUSPoll
Student Loans
6-3DECIDED
JUNE 30
The court ruled that the Biden administration’s plan to wipe
out more than $400 billion in student debt was not
authorized by Congress.
Liberal bloc
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Conservative bloc
Roberts
Kavanaugh
Barrett
Gorsuch
Alito
Thomas
Where the public stands
The Biden administration
overstepped its authority with its
debt forgiveness plan
The Biden administration did not
overstep its authority with its debt
forgiveness plan
All 50% 50%
Democrats 27% 73%
Independents 53% 47%
Republicans 72% 28%
Question wording: The Biden administration announced plans to give up to $20,000 in student
loan forgiveness to people who make less than $125,000 a year. Some people think that the Biden
administration overstepped its authority with this debt forgiveness plan. Other people disagree and
think the Biden administration did not overstep its authority. What do you think? | Source:
SCOTUSPoll
Religion, Free Speech and Gay Rights
6-3DECIDED
JUNE 30
The court decided that the First Amendment allows a web
designer who objects to same-sex marriages to violate a
state law that prohibits discrimination based on sexual
orientation.
Liberal bloc
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Conservative bloc
Roberts
Kavanaugh
Barrett
Gorsuch
Alito
Thomas
Where the public stands
Such a law violates business
owners’ rights to free speech
Such a law does not violate
business owners’ rights to free
speech
All 51% 49%
Democrats 34% 66%
Independents 54% 46%
Republicans 66% 34%
Question wording: Colorado law prohibits businesses, including creative and artistic businesses,
from discriminating against gay customers. Some people think this violates business owners’ rights
to free speech. Other people think this does not violate business owners’ rights to free speech.
What do you think? | Source: SCOTUSPoll
State Legislatures and Federal Elections
6-3DECIDED
JUNE 27
The court rejected a legal theory that would have given
state legislatures largely unchecked power to set the rules
for federal elections.
Liberal bloc
Sotomayor Jackson Kagan
Conservative bloc
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Roberts
Kavanaugh
Barrett
Where the public stands
State courts can exercise
oversight over federal elections
just like they do in other areas
Only state legislatures can
regulate federal elections, without
oversight from state courts
All 55% 45%
Democrats 61% 39%
Independents 53% 47%
Republicans 50% 50%
Question wording: Some people think that the language in the Constitution means that only state
legislatures can regulate federal elections, without oversight from state courts. Other people think
that state courts can exercise this oversight as they do in other areas. What do you think? | Source:
SCOTUSPoll
Race and Voting Maps
5-4DECIDED
JUNE 8
The court ruled that Alabama had diluted the power of
Black voters by drawing a congressional voting map with a
single district in which they made up a majority.
Liberal bloc
Sotomayor Jackson Kagan
Conservative bloc
Roberts
Kavanaugh
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Where the public stands
The state should be forced to
redraw the district
The original plan with one majorityBlack
district is lawful
All 53% 47%
Democrats 65% 35%
Independents 52% 48%
Republicans 39% 61%
Question wording: One-fourth of Alabama voters are Black. Alabama recently created seven
congressional districts, with only one of them being a majority-Black district. Some people think
that the small number of districts in which Black voters are a majority violates Section 2 of the
Voting Rights Act, which bans racial discrimination in voting policies, and that the state should be
forced to redraw the districts. Other people disagree and say that the original plan with one
majority-Black district is lawful. What do you think? | Source: SCOTUSPoll
Tribal Rights
7-2DECIDED
JUNE 15
The court upheld the Indian Child Welfare Act, a 1978 law
that seeks to keep Native American children with their
tribes and preserve their heritage. But the ruling did not
resolve the question of whether the law discriminated
against non-Native families based on race.
Liberal bloc
Sotomayor Jackson Kagan
Conservative bloc
Roberts
Kavanaugh
Barrett
Gorsuch
Where the public stands
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This law discriminates on the
basis of race
This law does not discriminate on
the basis of race
All 47% 53%
Democrats 44% 56%
Independents 49% 51%
Republicans 46% 54%
Question wording: In 1978, Congress enacted a law that says that Native American children who
are removed from their families should be placed with extended family members or foster homes of
people who are also Native American. Some people think this law discriminates on the basis of
race. Other people think it does not discriminate on the basis of race. What do you think? | Source:
SCOTUSPoll
Religious Employees
9-0DECIDED
JUNE 29
The court broadened accommodations employers must
make for workers’ religious practices after a postal worker
refused to work on Sundays for religious reasons.
Liberal bloc
Sotomayor Jackson Kagan
Conservative bloc
Roberts
Kavanaugh
Barrett
Gorsuch
Alito
Thomas
Where the public stands
This is not religious discrimination This is religious discrimination
All 49% 51%
Democrats 51% 49%
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Independents 49% 51%
Republicans 48% 52%
Question wording: A postal worker refused to work on Sundays for religious reasons. The Postal
Service agreed to help him find co-workers to swap shifts with, but when he could not find any coworkers
to swap with and did not show up to work multiple times, he was disciplined and then quit.
Some people think that this is not religious discrimination. Other people think that this is religious
discrimination and that the employer should have to accommodate his beliefs and should not have
disciplined him. | Source: SCOTUSPoll
Environmental Protection
5-4DECIDED
MAY 25
The court ruled that the Clean Water Act does not allow the
Environmental Protection Agency to regulate discharges
into wetlands near bodies of water unless they have “a
continuous surface connection” to those waters. Four of the
justices also voted against the E.P.A., but on narrower
grounds.
Liberal bloc
Conservative bloc
Roberts Barrett
Gorsuch
Alito
Thomas
Where the public stands
The Clean Water Act should be
read broadly, to include things
like wetlands
The Clean Water Act should be
read narrowly, to not include things
like wetlands
All 72% 28%
Democrats 81% 19%
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Independents 70% 30%
Republicans 66% 34%
Question wording: The Clean Water Act is a federal law that prohibits the “discharge of pollutants”
into “navigable waters.” Some people think that this should be read broadly, to include things like
wetlands. Other people think that this should be read narrowly, to include only things like streams,
rivers and lakes. What do you think? | Source: SCOTUSPoll
Animal Cruelty and Interstate Commerce
5-4DECIDED
MAY 11
The court upheld a California law that sought to address
cruelty to animals, saying the state could require pork sold
there but produced elsewhere to come from breeding pigs
housed in spaces that allow them to move around freely.
Liberal bloc
Sotomayor Kagan
Conservative bloc
Barrett
Gorsuch Thomas
Where the public stands
Such a law discriminates against
commerce from other states
Such a law does not discriminate
against commerce from other
states
All 48% 52%
Democrats 41% 59%
Independents 47% 53%
Republicans 60% 40%
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Question wording: California law prohibits the sale of pork from pigs that are kept in small cages.
Some people think that such a law discriminates against commerce from other states because
most pork comes from outside California. Other people think that such a law does not discriminate
against commerce from other states. What do you think? | Source: SCOTUSPoll
Fair Use of Copyrighted Works
7-2DECIDED
MAY 18
The court ruled that Andy Warhol had improperly drawn on
a prominent photographer’s portrait of Prince for an image
of the musician that his estate licensed to a magazine.
Liberal bloc
Sotomayor Jackson
Conservative bloc
Kavanaugh
Barrett
Gorsuch
Alito
Thomas
Where the public stands
The original creator is not entitled
to payment
The original creator is entitled to
payment
All 26% 74%
Democrats 23% 77%
Independents 27% 73%
Republicans 28% 72%
Question wording: In 1981, a photographer took a photo of the musician Prince. The artist Andy
Warhol made changes to this photograph and used that to create a series of famous prints. Some
people think that when images are transformed like this, the original creator is not entitled to any
payment. Other people think that the original creator is entitled to payment because the image is
still recognizable. What do you think? | Source: SCOTUSPoll
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Scope of Tech Platforms’ Liability Shield
9-0DECIDED
MAY 18
The court sidestepped ruling on whether a law that protects
social media platforms from lawsuits shields YouTube from
a suit over videos supporting terrorism.
Liberal bloc
Sotomayor Jackson Kagan
Conservative bloc
Roberts
Kavanaugh
Barrett
Gorsuch
Alito
Thomas
Where the public stands
Companies can be held
responsible when their algorithm
recommends content to users
Companies cannot be held
responsible when their algorithm
recommends content to users
All 69% 31%
Democrats 70% 30%
Independents 69% 31%
Republicans 66% 34%
Question wording: Some people think that large tech companies, such as Google, can be held
responsible when their algorithm recommends certain content to users. Other people think that
these companies cannot be held responsible for content recommended by the company's
algorithms if that content was posted by other users. What do you think? | Source: SCOTUSPoll
Tech Platforms and Terrorism
9-0
The court ruled that internet platforms may not be sued for
aiding and abetting international terrorism by failing to
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DECIDED
MAY 18
remove videos supporting the Islamic State.
Liberal bloc
Sotomayor Jackson Kagan
Conservative bloc
Roberts
Kavanaugh
Barrett
Gorsuch
Alito
Thomas
Where the public stands
Social media companies can be
held responsible
Social media companies cannot be
held responsible
All 72% 28%
Democrats 77% 23%
Independents 72% 28%
Republicans 67% 33%
Question wording: Federal law states that social media companies are not responsible for hosting
content that is posted by others. Some people think that social media companies can be held
responsible for aiding and abetting terrorism for not removing content and accounts promoting
terrorism. Other people think that they cannot be held responsible. What do you think? | Source:
SCOTUSPoll
Sources: SCOTUSPoll project by Stephen Jessee, University of Texas at Austin; Neil Malhotra,
Stanford University; and Maya Sen, Harvard University | Note: The polling data is based on a
survey conducted online by YouGov from April 5 to 11 using a representative sample of 2,029
American adults.