Term To End Tomorrow | Justices Deliver More Unanimous Opinions This Session Than Any Time In Last 7 Years

June 30, 2021

The Supreme Court is set to close out its term tomorrow and hand down the last opinions of this session. Just two remain — both of which are biggies, of course. One involves the Voting Rights Act and the other involves California’s nonprofit donor disclosure rules. Tucker Higgins with CNBC reports, “The end of the term marks a close to one of the most transformative Supreme Court terms in memory. That’s because it was the first to take place after the death of liberal JUSTICE RUTH BADER GINSBURG and her succession by the conservative JUSTICE AMY CONEY BARRETT, appointed by former PRESIDENT DONALD TRUMP. Despite that change in membership, though — or perhaps as a result of it — the court’s docket was relatively muted. The court’s lack of major decisions featuring its new 6-3 conservative majority came amid calls from some Democrats to expand the bench or otherwise overhaul the judicial body.”

Devin Dwyer with ABC News writes, “The nine justices have charted a surprising course down the middle in 2021, handing down more unanimous opinions than any time in at least the last seven years.” Yep, that’s right. The term was not as explosive as was expected after the death of JUSTICE RUTH BADER GINSBURG and the court shifting even further to the right. Dwyer notes: “An ABC News analysis found 67% of the court’s opinions in cases argued during the term that ends this month have been unanimous or near-unanimous with just one justice dissenting. That compares to just 46% of unanimous or near-unanimous decisions during the 2019 term and the 48% average unanimous decision rate of the past decade, according to SCOTUSblog.”

Yesterday, SCOTUS refused to lift a federal moratorium on evictions that was imposed by the CDC in response to the pandemic. The justices were split 5-4 with CHIEF JUSTICE ROBERTS and JUSTICE BRETT KAVANAUGH joining their three liberal colleagues. The justices didn’t give a reason for its ruling, but Kavanaugh did issue a brief concurrence in which he explained, “Because the C.D.C. plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application.” A group of landlords, real estate companies and trade associations had asked SCOTUS to step in on an emergency basis to end the temporary block on evictions arguing, “Congress never gave the CDC the staggering amount of power it now claims.”

Joan Biskupic with CNN notes that COVID-19 has robbed SCOTUS of its tradition of justices reading their dissents from the bench on decision days. She notes, “History unfolds on these occasions, as when JUSTICE SONIA SOTOMAYOR gave voice to her experience as the first Latina justice, or when CHIEF JUSTICE JOHN ROBERTS decried a right to same-sex marriage while a swelling crowd outside the court cheered loudly. The late JUSTICE RUTH BADER GINSBURG wore a special collar, black with small jewel accents, over her robe for those times when she slowly but clearly read her dissent aloud. These gripping moments of anger and frustration flesh out the robe-clad justices, usually loath to reveal themselves beyond their opinions. As much as the words, it’s the pitch of a voice and intensity of facial expressions, including what’s seen of fellow justices along the bench. But the drama ended when the building was shuttered.”

Last week, The Editorial Board of The Wall Street Journal wrote, “SHELDON WHITEHOUSE is making it his life’s work to harass the Supreme Court, and now he wants to track where the justices travel and why.” The Ed Board suggested that Whitehouse wanting for more transparency when it comes to justices’ trips and associated gifts is his way of actually looking for information “to tarnish the reputation of the court, especially the right-leaning justices.”

But not so fast, WSJ. GABE ROTH with Fix the Court wrote a letter in response to the Ed Board’s editorial on SENATOR WHITEHOUSE in which he points out, “While Supreme Court justices must file annual financial disclosure reports, they have no ethics body—unlike the rest of government—ensuring that their reports are complete and accurate, and they suffer no consequences should they omit trips, reimbursements and gifts.” Roth says requests for additional oversight, especially on a bipartisan basis as Senator Whitehouse is doing alongside SENATOR JOHN KENNEDY, should be welcomed.