Currently at the U.S. Supreme Court, the conservatives hold a 6-3 majority. While there are exceptions, most of the politically sensitive cases break along the 6-3 ideological lines. Recent prominent examples of cases breaking in that way include Trump v. CASA (limiting the ability of district judges to issue nationwide injunctions against executive actions); U.S. v. Skrmetti (upholding Tennessee statute banning transgender surgeries on minors); and Loper Bright v. Raimondo (ending the rule that courts should “defer” to administrative agencies as to interpretation of their regulations). In these and numerous other cases, the three liberal justices (Kagan, Sotomayor, and Jackson) would have reached the opposite result.
But the 6-3 conservative majority is very much a result of happenstance. Donald Trump won the 2016 election by a hair, and then got three Supreme Court appointments in his first term. Had Hillary Clinton won, she would have appointed three liberals. Barack Obama’s appointment of Merrick Garland got sunk by some deft maneuvering by Mitch McConnell. Liberal David Souter, appointed by George H.W. Bush in 1990, retired in 2009 (and has since died), while conservative Clarence Thomas, appointed by the same president in 1991, continues to serve.
With a few different breaks, the Court could easily have a 6-3, or even 7-2, liberal majority. Do you ever wonder what our law might look like if that had occurred?
You don’t have to look far to find out. In Europe and Israel, the political left has found ways to control the judiciary, and in particular the highest courts, no matter which political parties win the elections. And here in the U.S., the barrage of litigation against Trump administration initiatives has given a coterie of Obama- and Biden-appointed district court judges the opportunity to show their view of how the law ought to work.
Join the conversation as a VIP Member