Who Votes in Lockstep1
Ever since Justice Anthony Kennedy announced his retirement in 2018, commentators have prophesied that President Trump’s replacement of that moderate jurist would lead to a conservative majority running roughshod over core liberal concerns. Chairman Whitehouse had already expressed concern about the “Roberts Five” — Chief Justice John Roberts and the then‐four other Republican‐appointed justices — which would presumably be “advancing right‐wing and corporate interests” even more.2 That’s why opposition to the milquetoast establishmentarian Brett Kavanaugh was so fierce, even before the 11th‐hour sexual‐assault allegations.
Many who opposed Justice Kavanaugh’s confirmation predicted that he would single‐handedly overturned Roe v. Wade, but a funny thing happened on the road to apocalypse. Especially in petition rejections and other procedural votes on the “shadow docket,” he has demonstrated a pragmatic approach. His first term, which featured few big controversies, showed the liberal justices voting together much more than the conservatives.
There were 67 decisions after argument in the term that ended in June 2019. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 39 times. And of the 20 cases where the Court split 5–4, only eight had the “expected” ideological divide of conservatives over liberals. By the end of that term, each conservative justice had joined the liberals as the deciding vote at least once. Justice Kavanaugh himself voted as much with Justices Stephen Breyer and Elena Kagan as with Justice Neil Gorsuch.3 That’s the lowest level of agreement between two justices appointed by the same president serving in their first term together in modern history — yes, lower than Justices Clarence Thomas and David Souter in 1991–1992. Meanwhile, Obama‐appointed Justices Kagan and Sonia Sotomayor were together in all the 5–4 cases in 2018–2019.
The following term, which ended in July 2020, showed a similar pattern. Although conservatives won a higher percentage of the 5–4 cases, the four Democratic‐appointed justices — call them the “Ginsburg Four,” after Justice Ruth Bader Ginsburg — still voted as a bloc more than the five Republican‐appointed justices.4 Most notably, Chief Justice Roberts “defected” on three key cases, involving LGBTQ rights, DACA, and abortion.
With Justice Amy Coney Barrett having now replaced Justice Ginsburg, Chief Justice Roberts is no longer the median vote, which means that it’s likely that his string of being the justice most often in the majority will come to an end. Still, it’s a safe bet that the Breyer Three will be together far more often than the Roberts Six.
That dynamic isn’t something that sprang up in the Trump era or with the Court’s newest personnel. In the 2014–15 term, with Justice Kennedy at the height of his “swing vote” power — the last full term before Justice Antonin Scalia’s death and resulting year‐long vacancy — the four liberals stuck together in 56 of 66 cases, while the four conservatives voted as a unit in 43.
Even in 2013–14, when liberals and conservatives voted with their respective coalitions equally (54 times in 66 cases), 41 of those decisions were unanimous and there were only a handful of 5–4 rulings. In other words, when conservative justices vote together at the same rate as their liberal counterparts, it’s because the entire Court is united.
Speaking of politically fraught cases that end up 5–4, it’s notable that there’s never a question of how the liberal justices will vote. Speculation runs rampant over whether one of the conservatives will go wobbly — out of unpredictable moderation, minimalistic pragmatism, or idiosyncratic theory — but the liberals are guaranteed to please their ideological comrades.
Most famously, in 2012’s NFIB v. Sebelius, Chief Justice Roberts transmogrified the individual mandate into a tax to save Obamacare. Roberts did a similar thing twice in 2019, in cases regarding the census citizenship question (Department of Commerce v. New York) and judicial deference to administrative‐agency reinterpretations of their own regulations (Kisor v. Wilkie). And again in 2020 in the aforementioned Bostock v. Clayton County (the employment‐discrimination case where Justice Gorsuch wrote the 6–3 majority opinion), Department of Homeland Security v. Regents of the University of California (DACA), and June Medical Services v. Russo (abortion, going against his own previous vote on stare decisis grounds).
Such intramural fractures often reveal lively intellectual debates that one rarely sees on the left. For example, Justice Gorsuch has joined the liberals six times in 5–4 decisions, typically writing for the majority or concurring separately without adopting progressive reasoning. These have mainly been in criminal‐law cases, where Gorsuch’s originalism shines through to the benefit of defendants in the same way Scalia’s often did — to the surprise of those who weren’t paying attention. Indeed, Gorsuch is rapidly becoming a libertarian darling even as Kavanaugh — and even Barrett — steers down the middle of the road.
In sum, if lockstep voting and a results‐driven Court concern us, it isn’t the conservatives we should be worried about. Senators, journalists, and academics love decrying the Roberts Five (now Six), but it’s the Ginsburg Four (now Breyer Three) that represent a bloc geared toward progressive policy outcomes. To be sure, a reinvigorated conservative grouping may yet come to dominate the Court, but it hasn’t happened yet.