Conservatives were divided on Mr. Trump’s big case before the Supreme Court. Two people who always voted for Trump: Samuel Alito and Clarence Thomas.
Supreme Court deals major blow to President Trump on immigration issue
With a 6-3 vote, President Trump’s citizenship order was rejected. Learn how the justices made their decision and why the 14th Amendment was key.
WASHINGTON – The increasingly polarized Supreme Court has more than doubled its rulings along ideological lines during its term ending June 30 compared to the previous term, reflecting a 6-3 split and one expert saying it means the justices are acting “more politically.”
Some of the key rulings divided conservative justices, especially in cases that were top priorities for President Donald Trump.
The court’s two most conservative justices, Clarence Thomas and Samuel Alito, consistently ruled in favor of the president, while four other conservative justices, including three appointed to the court during President Trump’s first term, took both sides.
“The six Republican appointees on the court are not a monolith,” said Canon Shanmugam, a partner at Davis Polk & Wardwell, who has argued 40 cases before the court. “And I don’t think you can understand the current court until you understand the nuances of the differences between these justices.”
Barrett attacks Trump over ruling against him
Judge Amy Coney Barrett was not the only judge appointed by President Trump to occasionally rule against him, but she drew attacks from Trump supporters.
Asked about the backlash against Barrett, who ruled against the Trump administration on the birthright citizenship issue, Vice President J.D. Vance told CNN he thought she made a “mistake.”
Legal analyst David French said on the Advisory Opinions podcast that his first thought after hearing the high court’s birthright decision was, “Judge Barrett is going to rot in hell for MAGA.”
Mr. Trump himself did not pursue conservative judges he appointed, including Judge Brett Kavanaugh. They were also part of the majority vote against the president’s attempt to change the long-standing definition of birthright citizenship through an executive order.
But he unloaded in February when Chief Justice Roberts, Chief Justice Barrett and Justice Neil Gorsuch joined liberal justices in eliminating the deep tariffs that had been the centerpiece of his economic policy.
President Trump called the ruling an “embarrassment” for Barrett and Gorsuch’s families.
“The two people who voted for my appointment are disgusted,” President Trump said in a speech to the National Republican Congressional Committee in March.
The president also complained in a post on Truth Social that liberal judges, unlike conservatives, “are always ‘united’.”
Liberal justices unite against Trump
All three justices appointed by Democratic presidents ruled against Mr. Trump on the tariffs, birthright citizenship and three other immigration cases, as well as his move to remove the leadership of the independent agency. They also ruled against the administration’s positions in several election-related cases, including one that allowed Republicans to draw more favorable congressional maps heading into the midterm elections.
Some of these decisions contributed to an increase in the proportion of cases that polarized the court ideologically, from 9% in the previous quarter to 23% this quarter, according to statistics compiled by SCOTUSBlog.
Steve Vladeck, a law professor at Georgetown University Law Center, said this year’s decisions show the court is acting “even more politically.”
“The occasional disagreement across ideology, or the defection of either the Chief Justice or Justices Gorsuch, Kavanaugh, or Barrett, is an exception that proves the rule rather than evidence of true independence,” Vladek wrote on Substack.
Center-right judges form coalition
Roman Martinez, a partner at Latham & Watkins who has argued 16 cases before the justices, said there’s no question the court is particularly polarized between the far right and the far left.
But he said it’s more interesting to focus on the court’s “centre-right” center, where “we’ve seen different coalitions emerge in different forms.”
He said, “If we can get a majority of the three middle judges in judgment after judgment, we will only win.”
Roberts in the driver’s seat
In three of the cases that were priorities for Mr. Trump, Mr. Roberts joined three liberal justices and at least one other conservative justice in ruling against the president, seeking to eliminate tariffs, uphold birthright citizenship, and prevent Mr. Trump from firing Federal Reserve chief Lisa Cook.
“He has tremendous power,” said Derek Muller, a professor at the University of Notre Dame School of Law. “I always feel like Chief Justice Roberts is the one in the big cases.”
If Mr. Roberts is in the majority, he can assign who will write the opinion. And he wrote three major lawsuits that Trump lost and another that the president won that allowed him to fire the leaders of independent agencies other than the Federal Reserve.
The decision, a long-standing goal of a conservative legal movement unaffiliated with President Trump, united all six conservatives against three liberals.
The court could have ruled against Trump more strictly on birthright citizenship, focusing solely on whether the president’s order violated federal law, but in Roberts’ opinion, the order violated the Constitution.
Eric Ouessan, who argued in a brief to 25 Republican attorneys general that Trump’s executive order should be allowed, said he was disappointed that the chief justice answered the constitutional question when there was no need to do so.
“Chief Roberts is generally known as a minimalist,” Ouessant said. “He prefers to make decisions that address the issues necessary to resolve the case and usually doesn’t touch on other issues too much.”
Kavanaugh reduced President Trump’s birthright citizenship loss
Mr. Roberts may have been trying to end the debate over birthright citizenship, but Mr. Kavanaugh’s partial opposition gave Mr. Trump an opening.
Mr. Kavanaugh could have limited his alternative opinion to arguing that President Trump’s orders cannot override federal law, and that was all that was needed to decide the case. Rather, it said the order did not violate the Constitution. This leaves the law open to change if one more conservative judge is convinced there is a way to do so without violating Section 14.th Fixed.
“Mr. Kavanaugh seemed to go out of his way, almost gratuitously, to not only partially agree but also disagree,” Vladek said.
Does Trump expect loyalty?
Even though Kavanaugh, Roberts and Barrett all voted to overturn President Trump’s executive order on birthright citizenship, it was Barrett who was criticized both for that ruling and for writing the decision supporting the mail-in voting moratorium.
“Thugs, impeach activist judges,” Rep. Nancy Mace (R-North Carolina) said on social media after the birthright citizenship ruling. “We’re looking for you, Amy Coney Barrett.”
Barrett was similarly attacked last year for being a “DEI employer” when she and Roberts joined the court’s three liberal justices in upholding the Trump administration’s order requiring foreign aid organizations to be compensated for work they already do for the government.
French said on his podcast that the only reason Barrett, a woman, is being unfairly criticized for ruling against Trump by a male conservative judge is that she benefited from a massive effort to get her confirmed in a very short period of time at the end of Trump’s first term.
“And I think there may be a feeling like, ‘We went to the wall for you. You have to deliver for us,'” he said. “That’s just a fundamental misunderstanding of what a judge is.”
President Trump said he wanted and expected “loyalty” not for himself but “for our country,” as he was expected to lose the birthright lawsuit.
Conservative but not necessarily pro-Trump terminology
Jonathan Adler, a professor at the William & Mary School of Law, said that although there have been cases in which Republican-appointed judges have strayed from conservative orthodoxy, the records of all six “remain very conservative in terms of their overall approach to the law.”
“I would characterize it as at least a conservative term, definitely, but not a pro-Trump term,” he said. “And I think that difference is important.”
But Berkeley Law School Dean Irwin Chemerinsky said Trump still prevails in most cases decided by the court after oral arguments or through emergency appeals filed by the administration.
“It’s important to note that Justices Thomas and Alito have never voted against the Trump administration.”
Thomas and Alito were Trump’s top defenders
Thomas wrote a whopping 91-page dissent to the majority’s 26-page opinion in the birthright citizenship case.
Alito’s dissent was brief but no less aggressive. “This is one of the most important decisions in the court’s history,” he wrote, “and, in my judgment, the court made a grave error.”
The next day, Mr. Vance was asked whether he thought Mr. Alito, who has recently been surrounded by speculation that he might retire, would resign.
Vance said he didn’t know, adding that Alito was “a very nice guy.”
“He’s going to be invaluable,” Vance told reporters.
