Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions

Fred Schilling, US Supreme Court

Below is my column in The Hill on decisions issued by the Supreme Court in recent weeks and how they have served as a retort to those who are calling for court packing or major changes in the institution. As noted below, we expect to see more ideological divisions emerge this and next week in some of the outstanding “big ticket” decisions. However, the Court seems to have front-loaded a line of cases refuting the arguments that it is dysfunctionally and hopelessly divided along ideological lines.  Today, the Supreme Court issued two more nearly unanimous decisions (with only Justice Sotomayor concurring and dissenting in part in both decision). The decisions were Terry v. United States and Greer v. United States.

Here is the column:

The Supreme Court this week continued to disappoint congressional Democrats and activists with a long line of embarrassingly unanimous, nonideological rulings. After all, the court is supposedly (to use President Biden’s words) “out of whack” due to its irreconcilable ideological divisions. Indeed, the court is allegedly so dysfunctionally divided that many, including Democratic leaders, have called for sweeping changes — from packing the court with new justices to changing its voting rules or even creating an alternative court.

That is why these weeks have so frustrated those who insist the court is a hopeless case of rigid ideologues. While next week could well bring some welcomed ideological divisions, the court is not making it easy on its critics.

Liberal Justice Stephen Breyer recently chafed at the claim that the court is “conservative” and condemned the calls to pack it with a liberal majority. A liberal group, “Demand Justice,” responded with billboard ads calling for Breyer’s resignation and warned him that he was risking his legacy. However, Breyer appears undeterred in ruling with his conservative colleagues when he considers that to be appropriate.

In the latest decision, Borden v. United States, the lineup of justices was strikingly nonideological. Justice Elena Kagan wrote the opinion for Justices Breyer, Sonia Sotomayor and Neil Gorsuch, with a concurrence from Justice Clarence Thomas — three liberal justices and two conservatives agreeing to limit the meaning of a “violent felony” for purposes of the Armed Career Criminal Act.

Last week, the decision in Van Buren v. United States was a majority of three liberals and three conservatives. In that case, the most senior justice was Breyer; he assigned it to his conservative colleague Justice Amy Coney Barrett, who wrote for Justices Breyer, Sotomayor, Gorsuch, Kagan and Brett Kavanaugh. Although he was on the other side in Van Buren, Justice Thomas joined his liberal colleagues in Borden.

These decisions follow a litany of unanimous decisions from the court, which seems to be sending a message in the timing of the release of its opinions: The justices do not rule on cases to send messages to Congress, but they do control what cases are accepted and when those decisions are released. It is hard not to view the last few weeks as a type of judicial “harrumph” to the continuing calls for court packing. While we expect more ideological splits in a few upcoming cases, these cases reaffirm that they are not so rigid or “hopelessly divided” as Democratic leaders and other critics have suggested.

In an op-ed for The New York Times, law professor Kent Greenfield argued that “the Supreme Court has become too partisan and unbalanced to trust it with deciding the most important issues of our day.” Greenfield calls for the establishment of a constitutional court that would strip the Supreme Court of the ability to rule on such questions because “the Supreme Court needs a breather.” That breather would last only 20 years — just enough time to shift the court’s majority.

That fate may still await the court. The call to pack today’s bench was never about reforming but about rigging the institution. House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) said in 2020 that if Democrats gained control of Congress, “the incoming Senate should immediately move to expand the Supreme Court.” Former Rep. Joe Kennedy III (D-Mass.) once tweeted, “If [Mitch McConnell] holds a vote in 2020, we pack the court in 2021. It’s that simple.”

Harvard professor Michael Klarman and others have not been subtle about the need to pack the court to guarantee an immediate liberal majority. Klarman has said the court must be changed to enact the Democrats’ sweeping agenda — and Democrats shouldn’t worry about Republicans responding with their own court packing if they return to power. Indeed, he explained, the point of changing the system is to guarantee that Republicans “will never win another election.” Klarman conceded that “the Supreme Court could strike down everything I just described,” so the court must be packed in advance to allow the desired changes to occur.

The problem is the court is not cooperating. Instead, consensus has been breaking out on a court that is supposed to be “too partisan and unbalanced to trust.” Apparently, it still has life in it as a functioning, ethical body.

The justices will continue to divide on some cases along ideological lines, particularly on constitutional cases. That is because these are principled jurists who view core jurisprudential issues differently. Americans themselves are equally divided on issues ranging from abortion to gun rights to race-based college admissions. Yet although Democrats cry foul when five conservative justices vote as a bloc, they are entirely supportive of the liberal justices voting as a bloc on the other side of those decisions. One side is denounced as biased while the other is celebrated as enlightened.

Even so, there have been a number of major cases involving constitutional issues where justices have crossed the ideological line. Indeed, under Chief Justice John Robertsunanimous opinions have continued to rise in number.

Of course, reality is rarely a barrier for politicians or pundits, particularly if news outlets distort the actual voting records of the justices. Moreover, President Biden has lacked the political courage or principle (that he once had as a senator) to stand up for the court against his own party. Instead, he has created a lopsided commission to appease the hard left. Yet even with the Democratic members and an obliging media, the Democrats are facing a public that continues to overwhelmingly oppose packing or changing the court. And the court is not making this easy by speaking inconveniently as one. These politicians and pundits are in the same position as the coroner who was about to perform an autopsy a couple of years ago when the dead man began to snore. It is hard to ignore. Before we do an autopsy on a still living judicial body, the public may want to listen to the court rather than its critics.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

59 thoughts on “Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions”

  1. Obama being denied 100 federal judges and a U.S. Supreme Court pick is the only court packing this century.

  2. God bless the members of the Supreme Court. None of them, regardless of their judicial philosophies, support the political hacks in Congress who want to change the of structure of the Court.

    1. Each of them enjoys the power that he/she/it has and doesn’t want to see it diluted.

  3. The singular American failure has been and remains the judicial branch, with emphasis on the Supreme Court.

    Judges and Justices are sworn to support the literal, verbatim Constitution, not modify, modify by “interpretation” or “legislate from the bench.”

    The judicial branch abandoned any support of the Constitution and became a second “rubber stamp” legislative branch under Abraham Lincoln.

    The entire American welfare state is unconstitutional based on the Article 1, Section 8, limitations and restrictions on the power to tax and regulate, and the right to private property.

    The judicial branch, nearly in its entirety, must be impeached, convicted and penalized severely for it demonstrable acts of opposition to and treason against the Constitution, Bill of Rights and America.

    Barring that possibility, the Founders admonished Americans to action:

    “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    – Declaration of Independence, 1776
    _____________________________

    Exactly what does a “woke” “sleeping giant” look like?

  4. OT – ARKANCIDE ALERT!

    Reporter Who Broke Story on 2016 Clinton/Lynch Tarmac Meeting Dead at 45 of Alleged Suicide

    Christopher Sign, the television anchor who broke the story that former President Bill Clinton secretly met with Loretta Lynch while the then-Attorney General investigated Hillary Clinton’s email scandal, is dead at 45. The meeting took place in 2016 when Hillary was vying with former President Donald Trump for the presidency. The Hoover, Alabama police department said the death is being investigated as an apparent suicide after Sign’s body was discovered in his home early Saturday morning. “We knew something had occurred that was a bit unusual,” Sign told “Fox & Friends” in February 2020 on the eve of the release of the book he wrote, Secret on the Tarmac, about the experience. “It was a planned meeting,” Sign said. “It was not a coincidence.” Sign told Fox his life has not been the same since he broke the story. “My family received significant death threats shortly after breaking this story,” Sign said. “Credit cards hacked.

    “You know, my children, we have code words. We have secret code words that they know what to do.”

  5. Mitch McConnell said on Hugh Hewitt’s show that he would block Biden’s appointments to the court. So in effect the republican party will not seat a Democratic President’s nominee no matter what. A republican controlled Senate might not even seat a appeals court either. So explain again how is that not court packing on the republican’s part. You don’t have to change the numbers on the court, but it’s still court packing when only one side gets to choose.

  6. You know, Turley, it’s becoming sad that you purport to speak for how “Democrats” feel about SCOTUS decisions. How do know about what any “Democrats” think of SCOTUS decisions? You don’t know. More of your anti-Democrat hatred from the Hate Network that employs you.

    Do you think anyone, including the alt-right disciples, doesn’t understand that the SCOTUS is putting out the non-controversial decisions ahead of the ones Gorsuch, Barrett and Kavanaugh were put on the Court to decide? Even talk of leveling the playing field causes them to go into defensive mode, but we all know what Trumpy Bear and the Republicans promised about the judges they would put on the SCOTUS, and the reasons why: to get the Evangelicals to the polls so they can keep saving unborn babies. Your pre-decision rhetoric is falling flat, Turley.

    BTW: you still haven’t commented on Trump’s DOJ secretly obtaining the phone records of prominent Democrats, their families and staffs, and Barr’s insistence that they keep looking for dirt, when the records didn’t disclose anything .

    1. Natacha, don’t hold your breath on Turley writing about Trump’s DOJ. Turley also will not write about Mitch McConnell saying he’ll block Biden’s appointment if he gains the Senate in 2022.

      1. Do you notice, as we all do, that you never comment on the substance of Turley’s article? All you do is add your comments here that attack the messenger and whine about this or that complaint you direct at Turley. That’s all you offer: ie. nothing but attacking the messenger. What a loser you are.

        1. I WAS commenting on the substance of Turley’s piece, which was to accuse Democrats of being confounded and WRONG when complaining about the right – shift of the SCOTUS, proven, he alleges, by unanimous or near-unanimous rulings of late. Of course, these rulings did not deal with the hot-button issues that most Americans are concerned that the current SCOUTS might change, nor do the rulings deal with the issues for which Gorsuch, Barrett and Kavanaugh were chosen, much less the reasons the Republicans placed these people on the bench: which was NOT to carry out the will of the majority of Americans. Republicans will do anything to curry favor with Evangelicals, knowing they’ll rush to the polls to save “unborn babies” to keep Republicans in power so they can put more anti-choice judges on benches. Lying, marital infidelity, fiscal irresponsibility–hallmarks of Trump–those things don’t bother Evangelicals, but abortion sure does. Republicans know they continue to lose support from the American people and will do everything to maintain power. Turley does not speak for the Democratic Party and never passes up an opportunity to criticize Democrats, consistent with the mission of the Hate Network. Do you not recall the promises made by Trump and McConnell when it came to SCOTUS appointments? Today’s piece is also another example of stirring the pot, to keep the deplorables pissed off by accusing Democrats of being wrong about the right tilt of the SCOTUS, all as a prelude to 2022.

          1. Not talking to you Natacha. It was to DoucheFish. Your comments are always full of substance, but what that substance is called depends on the reader.

      2. Ok, sorry for calling you a loser. You are a loser, of course, but it was wrong of me to call you that here in my comment.

  7. I don’t think JT looks kindly on commenters who advocate violence, mespo. IIRR, that’s why Art Deco was banned.

  8. Turley’s crfocodile tears about court packing – it is packed with a majority of justices appointed by president’s who lost the vote and one seat flat out stolen from a twice elected president and the majority who voted for him – comes full circle in his pretend clebration of SOP on unanimous opinions, always a feature of courts. The ram rodding of decisions to come – like the ram rodding of Barret’s nomination before her loser appointer was embarrassed again in an election.

    Turley is a sickening hack who is not worthy of attention. He’ll say anything to get on TV an dthat has resulted in his stage shrinking to one network, until such time as he shows up on Newsmax.

      1. So what is it, when Mitch McConnell said that he would block Biden’s appointment IF he wins the Senate in 2022.

        1. Mitch is playing the game within the rules. Dems would block anything they could too if given the opportunity….and they have.

          1. Mitch is playing by the rules of the game. The difference is that Democrats do NOT play by the rules.

          2. Refusing the SEnate’s constitutional duty – it is not optional – to advise and consent on presidential appointments to the court is not “playing the game”, unless “playing the game is leading a traitorous insurrection. To advise and consent would require a hearing and a vote at which point Senators can vote up or down. NOt holdoingg a hearing is a thft of a seat by refusing hearings is a purposeful derelection of a constitutional duty.

  9. There was once a man who declared that elections have consequences. Some here lament that legislation by their party is being blocked by the opposing party. Yet, they are all in when their side does the blocking. Instead of convincing the American people that their plans are the best plans they just cry big tears into their beers at the oppositions resistance. Why blame their policies for their rejection by the populace when it feels better to boo hoo hoo. An example would be voter ID requirement supported by a large majority of Legal Americans being resisted by the crying party.

    1. TTT: “the populace” rejected Trump twice–in 2016 and 2020. The majority of “the populace” never accepted Trump, who set a record for low approval ratings. The majority of “the populace” rejects Republicans, too, and they wouldn’t even begin to have the power they have but for gerrymandering and voter suppression tactics. The majority of “the populace” lawfully elected Barak Obama twice, and his choice of SCOTUS nominee was blocked by McConnell allegedly because of the proximity of the next presidential election, but when the tables were turned, Covid-Barrett was shoved onto the Court to curry favor with Evangelicals, who fantasize that they are saving “unborn babies”. So, please don’t try to pretend that the will of the American people is being carried out by Republicans.

  10. The left has made all sorts of assumptions about the Supreme Court, but those same false assumptions were made about Trump as well. Here are some examples:

    ‘Proven right’: Trump savors post-presidency vindication streak

    The 45th president is enjoying a run of belated validation on a series of controversial issues, including: the Covid lab-leak theory, Russian bounties, Lafayette Park police tactics, hydroxychloroquine, and his words to a Georgia election investigator.

    “I have been proven right (once again),” former President Donald Trump declared this week in claiming vindication for advancing the COVID-19 “lab-leak” theory, for which he was roundly jeered last year.

    Whether or not the lab-leak theory turns out to be correct remains to be seen. But the new respect with which the theory is being treated is just one of several high-profile vindications the 45th president has received since leaving office in January. Here are five significant shifts in conventional wisdom and prevailing media narratives that have the former president crowing, in effect, “I told you so!”

    1. Lab-leak reversal: … 2. Growing evidence hydroxychloroquine may be effective COVID-19 treatment: …3. Intelligence Community doubts about Russian bounties on U.S. troops in Afghanistan: … 4. IG debunks Lafayette Park photo-op myth …5. Washington Post corrects report Trump urged election official to “find the fraud”:”

    Continued at: https://justthenews.com/politics-policy/all-things-trump/hcq-russian-bounties-lafayette-park-wuhan-lab-trump-rides-wave?utm_source=daily&utm_medium=email&utm_campaign=newsletter#article

    1. I can’t remember which of the alt-right stations I saw this on, but none of this is true. First: when, where and how has it been PROVEN that SARS-CoVID II came from the lab? IT HASN’T. More of the alt-right lies you tune into for indoctrination. The matter is being investigated, but SARS, MERSA and AIDS all came from animals, so chances are that COVID did as well, and that is according to numerous infectious disease experts. Your fat orange hero said this because China wouldn’t kiss his ample ass and because he is a racist and xenophobe. Thanks to this lie, Asian-Americans have been the targets of hate crimes. His accusation sure wasn’t based on facts because he had no facts at the time, and still doesn’t, because even now, the actual origin is not known. So, your hero wasn’t “vindicated”.

      When, where and by what authority were “Russian bounties” debunked, and when and where did your hero claim otherwise? Hydroxycholoroquine has NOT been PROVEN to be effective as either a preventative, which Trump said it was, or a treatment. The study you refer to included azithromycin, an antibiotic. Hydroxychloroquine of itself is proven to be ineffective. So, he’s still not “vindicated”.

      His “words to a Georgia legislator” are recorded. I’ve heard them. The reason they were recorded is because Trump is a chronic, habitual liar, and the man wanted to protect himself.

      Trump remains the worst occupant of the White House ever. America is still recovering from the fake “presidency” forced on us by his collusion with Russia. And….what about spying on members of the media and Democratic lawmakers? What about that? It’s way worse than what Nixon did.

      1. Natacha, I only deal with your first sentence or two.

        “First: when, where and how has it been PROVEN that SARS-CoVID II came from the lab?”

        It is not proven conclusively, but what was denied by Fauci is now considered a good possibility by Fauci. Of course, Fauci lied about many things, and he knew a lot more about the lab than he let on. Money from the US helped support that lab, and Fauci’s statements on this were lies.

        We found things in the DNA structure that do not exist or have never been found naturally in any virus but found when the virus has been altered. Fauci has known about this for quite a while.

        So while it hasn’t been conclusively proven that Covid came from the lab, the best evidence points directly to the lab.

      2. Natacha, I’ll take just one. The Russian bounties were attributed to the Left loving ” anonymous sources ” .Not one ” source ” put their name on it. Therefore it is incumbent on the accuser to prove validity. Not the other way around.

  11. “Below is my column in the Hill”

    I want one particular participant of these blog comments to note that Professor Turley not only deals with Fox but right here, the professor is writing for the Hill. Professor Turley has been involved with a wide range of commentary.

    It makes that character look quite foolish when he attacks Turley for being an arm of Fox. TDS can do terrible things to one’s brain. I hope Jeff Silberman is taking note.

    1. Duly noted that Allan S. Meyer has decided to proclaim publicly (yet again) that he will taking needed measures to wedge his head up his butt another notch. We see you, Allan, and we appreciate the effort.

      1. The go to comment by Anon. When the point can’t be argued go to demeaning of the commenter. This tactic just demeans the user of the cheap trick and informs us all of his inability to answer in an educated way. The second exposure is a lacking of character. What is amazing is that the person who uses this tactic doesn’t understand what he is doing to himself.

      2. More nonsense from Anonymous the Stupid. That is a sign of a person who isn’t very bright.

        Take note how he can’t discuss what was said: I’ll quote the important paragraph written by SM above. “I want one particular participant of these blog comments to note that Professor Turley not only deals with Fox but right here, the professor is writing for the Hill. Professor Turley has been involved with a wide range of commentary.”

        1. Anonymous the Stupid should take note of what Jeff said in a more recent statement:

          “Do bear in mind, Mr. Detmar, that Turley is beholden to his employer Fox News which pays him handsomely to criticize the MSM. …” That is innuendo if not libel.

  12. Hard not to think we’re seeing the 1st act set up of what will be a series of fire storm decisions in a little while.

    eb

    1. Wait till the right-wing part of the court gets their hands on the so-called “shadow docket”

      1. We know what’s coming. Ha. They’ve even got Turley floating 3 card monty fluff pieces.

        eb

  13. The data show that Democrat nominated justices are far more likely to vote as a bloc than Republican nominated justices. Here are two links:
    http://ericposner.com/has-the-supreme-court-become-less-ideological/

    https://www.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001/

    Further, the data in the USA Today article show that out of 67 decisions in the term analyzed, 20 were 5-4 decisions. Only 7 of the 5-4 decisions, a bit more than 10%, were split along “partisan” or “ideological” lines.

    The activists, pretend “intellectuals” and elected Democrats who tell their base what to think are dishonest liars.

    It is a lie that SCOTUS is hopelessly divided along partisan lines. No data supports it.

    1. “No data supports it”….. Except the pesky 5-4 that is always from the right of late. Soon to be 6-3

      1. “it is a lie that SCOTUS is hopelessly divided along partisan lines” maybe you could ask Mitch McConnell if that’s true.

  14. The Democrats’ rush to shore up their minority base has so far resulted in nothing but racist legislation on federal spending that is being overturned by federal courts. The idea of packing the court — while it makes great bullying BS — will fail just as it failed in 1937. And Biden is no FDR. The Dems are insulting not only the American people with their clumsy power grab, but also the justices on the court. Their assumption that any judge appointed by Biden will do his bidding is laughable. Democrats should look less to ideology and more to history: in Roe v Wade, justices appointed by Republican Eisenhower voted for Roe, while the justice appointed by liberal Kennedy voted against it. If the likes of nadler and Schumer believe that will own the votes of liberal SC justices, they are simply projecting from their own shady brand of politics.

  15. I find it funnily ironic that in public and away from their svengalis, dems are more or less just embarrassing, but they won’t relent. Facsists simply don’t do that, they have the true belief of the Spanish Inquisition. That their machinations are openly about removing opposing parties from power and eliminating them forever regardless of opinions should tell you everything you need to know. Non-fascists do not engage in this behavior, period. Non-dems (yes, they go after Libertarians and Independents now, too) are heretics and must be expunged.

    I didn’t used to think so, but this may turn very, very bad, as in ‘hot’ bad, if we don’t reel things in, and soon.

  16. SCOTUS session is not over and they have not released their most controversial opinions yet. This article is a few weeks premature and likely will look very silly soon.

  17. There is nothing more disingenuous that this kind of willfully blind discussion. You know good and well that it is voter suppression, gerrymandering. Women’s autonomy, among other things, that form the basis of the Republican attack on our democracy and that the right wing justices are poised to gut democracy in order to solidify the Republican strangle hold. The Republicans have made it clear that disenfranchisement is their goal and their salvation but that doesn’t seem to bother you at all.

      1. Too many to count as far as proposals go. But they all fit in the category of making it harder for targeted groups of people to vote, whether it be removal of polling locations from neighborhoods, limiting eligibility for mail in voting, shortening of early voting windows, shortening hours polls are open, trying to block voting eligibility for ‘souls to the polls’ >> sunday voting hours crucial to the efforts of churches in black and brown neighborhoods to spur the best voting turnout they can.

        To not see this is being deliberately obtuse. Multiply that by numerous interviews and taped incidents of speaking the quiet part out loud that the goal of voting restrictions is meant to target voting blocs that don’t tend to vote republican. Georgia and Texas have even set up machinations of overriding voting tallies through the use of designated electors…, in other words they’ve made it legal for someone like trump to call up and say ‘i just need 11,000 more votes’ and then have it be within the rules to find a way to give those votes up. We’re past the point of whether or not this is actually occuring and firmly within the territory of it just being about whether you agree with these methods or not. Time to up your game, Mespo. Just come right out and say you think it’s a good idea to limit the vote. It’s not a secret.

        eb

        1. And requiring ID for liquor makes it harder to drink? EB shows surprising lack of awareness.

          1. Because I didn’t even mention voter ID in my post and instead focused on structural changes? But don’t let what i actually said get in the way of your chance to spit out the Fox slop.

            eb

  18. This move to pack the Court may be the most striking example of a raw political move I’ve observed since first reading All the King’s Men, as illustrated by Klarman’s pronouncement.. Who is WIllie Stark in this drama? Let’s just hope “he” doesn’t win

    1. I guess McConnell’s virtually veto of all legislation doesn’t bother you at all.

      1. Nope, not a bit. Sorry, not sorry. If Schumer was half the parliamentarian McConnell was, you guys would have more success

        1. Actually agreed. Shumer and the Dems owe Repubs and McConnell nothing more than stepping on his neck in every single way they can. That’s clearly McConnell’s solitary focus with the Dems. I see the necessity in making enough of an effort to highlight that Mitch has no interest in bargaining in good faith…, no one really cares anymore though. In honor of the passing of Ned Beatty, it’s time to bend Mitch over and make him squeal.

          eb

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