So the Supreme Court has become super-Trumpy, right? After all, it allowed the president to remove hundreds of thousands of refugees and the heads of previously independent agencies. It struck down a campaign-finance law to the benefit of the Republican Party and ruled against Hawaii’s gun regulations and Colorado’s ban on conversion therapy. But are you so sure, given that it also went against President Trump on the things he cares about most: tariffs, sending the National Guard into cities, counting late-arriving mail-in ballots, removing a governor of the Federal Reserve, and, of course, birthright citizenship?
What is going on? Are the justices schizophrenic? Or maybe one or two of them can’t decide whether to go all-in for MAGA or the Resistance?
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No, that’s not it at all. You simply can’t view the Court through a political lens, but instead must realize that the justices are looking at legal issues. All nine are doing their best to interpret the Constitution and federal laws faithfully and apply them to the facts of particular cases. There are stark disagreements over what that means, of course—judging isn’t like plugging a question into an AI program—but this isn’t a situation where there are two wings of the Court and then one or two swing votes.
Instead, we have a largely originalist and textualist Court—interpreting constitutional provisions according to their original public meaning, and laws according to the plain meaning of their text—with conservative sensibilities in the institutional sense. That means that it’s trying to rebalance the separation of powers and enforce federalism. It can look like it’s favoring President Trump because a majority believe that the Constitution gives the president control of the executive branch—what’s sometimes called “unitary executive theory”—but that doesn’t mean that it’ll let him do anything he wants. The president remains constrained by statutes, courts, Congress, and the Constitution. That means that the justices won’t let Trump rewrite laws by himself—and his legal positions have run into trouble when they push that envelope.
But okay, even if it’s not a Trumpy Court, it’s super-ideological and polarized, right? Well, it’s true that, in recent years, many of the Court’s highest-profile cases have ended with a 6–3 ideological alignment: the six Republican-appointed justices in the majority and the three Democratic-appointed justices in dissent. And this term had more of those divides. Last term, 15.2 percent of the decisions were 6–3, and 9 percent were ideological splits (that’s just six cases). This term, those numbers increased to 28.8 percent and 22.7 percent, respectively. The liberal justices also dissented together more often, moving from 15 percent of cases last term to 24.2 percent (nearly a quarter) this term.
Yet last week’s rulings somewhat complicated that polarization narrative. Two weeks ago, seven of nine decisions split 6–3 along ideological lines. But in the seemingly more controversial denouement, only four of seven did. Perhaps more interestingly, in the three final-week decisions that didn’t follow the ideological 6–3 pattern, all three liberal justices were in the majority.
Moreover, of the Court’s 56 signed opinions in argued cases—not including the emergency applications for stay that were decided on the papers—25 were unanimous (44.6 percent) and another six were 8–1 (10.7 percent). That’s over 50 percent and higher than last year. And in another 11 cases, three or four Republican appointees dissented, revealing doctrinal discord among conservatives, not partisan splits.
Speaking of intra-conservative discord, Justice Amy Coney Barrett in particular came in for criticism—much of it quite nasty and sometimes sexist—from some on the Right. The same thing happened last year. This time, the flashpoints were her rulings on birthright citizenship and mail-in ballots. And yet here’s a justice who voted to overturn Roe v. Wade; end Chevron deference and racial preferences in college admissions; give President Trump immunity from prosecution after blocking states from removing him from the ballot; end Temporary Protected Status for Haitians and Syrians; allow states to prohibit medical transitioning of minors; empower the president to fire agency heads; end the Lemon test and protect religious liberty; expand gun rights; restrict racial gerrymandering, and more. If she’s a squish, the conservative legal movement could use more squishes!
As for purveyors of the “3–3–3 Court” theory—with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson on the Left, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch on the Right, and Justices John Roberts, Brett Kavanaugh, and Barrett in the middle—the middle triumvirate were indeed in the majority more than anyone else (Roberts and Kavanaugh in 95 percent of cases, Barrett in 92 percent), followed by the conservative trio (83–86 percent), and then the liberals (67–73 percent). But this was the first term in several years where Kagan trailed Thomas and Alito, and there was only one case where the conservative trio was in dissent by itself (birthright citizenship). So again, it’s a small-c conservative court, but one subject to the vagaries of its docket and with a lot of jurisprudential fluidity.
Justice Thomas sided with Manhattan Institute in five of the six cases in which we filed briefs, followed by a five-way tie among the other Republican-appointed justices with agreement in four cases. Not surprisingly, Justice Jackson agreed with us only twice, in rulings that were unanimous. Here’s the breakdown of how MI did, with links to our briefs and background on the cases:
Winning side (4): Chiles v. Salazar; NRSC v. FEC; First Choice Women’s Resource Center v. Platkin; Olivier v. City of Brandon
Losing side (2): Pung v. Isabella County; FCC v. AT&T
You’ll notice that we didn’t file in many of the high-profile cases, including Learning Resources v. Trump (tariffs), Louisiana v. Callais (majority-minority districts), Trump v. Slaughter (removal of agency heads), West Virginia v. B.P.J. (transgender athletes), and Trump v. Barbara (birthright citizenship). This is for a variety of reasons, including that Manhattan Institute doesn’t have any particular expertise or institutional interest in some areas (like redistricting) and didn’t have anything original to say in others (as in Slaughter). In Barbara, MI didn’t have expertise or originality, but our adjunct fellow Ilan Wurman did—and his work was cited by Justices Thomas and Alito. (Justice Thomas also cited new adjunct fellow Josh Blackman.) Colin Wright and I were going to file a brief in B.P.J. but ran out of time in light of other pressing demands.
MI also increased its resources on “cert-stage” briefs (those supporting petitions for review). These don’t get as much attention as those filed after the Court has already agreed to hear argument, but they tend to be more important because the Court reverses or vacates about 70 percent of the time—so getting the justices to take a case is much more than half the battle. The Court generally grants fewer than 1 percent of petitions, but in 2025, the Court agreed to hear four of 15 cases in which we filed (26.7 percent). So far in 2026, we’ve filed 29, with three accepted and eight pending.
In any event, as the justices explained their final opinions, observers waited anxiously for a retirement announcement. I wasn’t so sure. Though Justice Thomas had just turned 78 and Justice Alito is 76, both are at the height of their influence, and neither appears ready to go—despite Nina Totenberg’s rookie mistake in publishing an item on Alito’s retirement at NPR’s website, before a hasty retraction. To the extent politics crops in, it’s still more likely than not that the GOP will hold the Senate in this fall’s elections, so the justices’ calculus will depend on whether they think the party will hold both the White House and Senate past 2028. So wait until next year to start speculating. We could even have another election-year confirmation battle, because Thomas almost certainly wants to serve through June 2028, when he’d become the all-time longest-service justice.
Regardless, the full cohort of nine will be back next term, which already has some exciting cases, including four in which MI filed briefs. In St. Mary Catholic Parish v. Roy, the Court will review a Colorado law that excludes certain religious preschools from its universal preschool program. Suncor v. Boulder County asks whether federal regulations trump state tort-law claims (also from Colorado) that oil companies harmed a county through climate change. In IPEC v. Ferguson, the Court will grapple with a Washington law that obviates parental consent or even notice for the gender transition of minors. And Grand v. University Heights asks whether Orthodox Jews need a permit to hold a prayer service at one of their homes—and whether they can even challenge this rule in federal court.
But there’ll be time enough to look at those—including at MI’s annual preview event the first Monday in October that begins the new term. For now, we have all summer to digest what the justices have wrought.