Inside a House Divided: Recent Alliances on the United States Supreme Court

77 Pages Posted: 24 Jan 2019

Date Written: 2018

Abstract

When the United States Supreme Court re-convened at the beginning of October 2016, observers focused on the absence of Justice Antonin Scalia, the recently deceased spokesperson for the Court’s conservative wing. Attention also centered on the political standoff that resulted from President Barack Obama's attempt to replace Scalia with Judge Merrick Garland, a battle that ended with the Senate refusing to vote on the nominee. By contrast, commentators paid little attention to the docket of cases that this shorthanded Court would consider.

This article fills this gap, examining the jurisprudential and political impacts of what turned out to be an extremely eventful and revealing term for the Court. It studies the work of the eight-member Court, a group that reached consensus at a record rate and handed down more unanimous decisions than had been seen from any term in recent memory. It examines the shifts that occurred after Justice Neil Gorsuch joined the Court's bench during this term, sparking a return to the political partisanship in divided cases that has more typically characterized the Court's recent behavior. It studies the alliances formed among the justices of the Court during this term, revealing some surprising partnerships in both criminal and civil decisions. Perhaps most revealingly of all, it demonstrates the possible arrival of a new "swing vote" on the Court: Chief Justice John Roberts, a jurist whose voting record crossed party lines throughout this term, perhaps setting himself up to someday replace Justice Anthony Kennedy as the least-predictable voter on the federal judiciary's highest bench.

Keywords: United States Supreme Court, Alliances, Jurisprudence, Neil Gorsuch, Donald Trump, Clarence Thomas, John Roberts, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Samuel Alito, Sonia Sotomayor, Criminal Justice

Suggested Citation

Pomerance, Benjamin, Inside a House Divided: Recent Alliances on the United States Supreme Court (2018). Albany Law Review, Vol. 81, No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3320066

Benjamin Pomerance (Contact Author)

Independent ( email )

United States

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