Judge Alito was horrified. “Today’s decision is the third part of our epic Affordable Care Act trilogy and follows the same pattern as parts one and two,” he wrote with Judge Gorsuch. “In all three episodes in which the Affordable Care Act was exposed to serious threats, the court delivered an unlikely rescue.”
Richard J. Lazarus, Harvard law professor, said the rulings suggest that “several key judges stand ready to temper their views in order to join the chief’s long-standing struggle to get the court to rule cases more closely and with a more unified voice.”
But he added a warning. “It remains to be seen,” he said, “whether his fight for an impartial image of the court will ultimately be lost, despite the boss’s best efforts.”
So far, the three court-appointed Democrats have voted split by a 73 percent majority during this tenure, slightly more than the 72 percent rate of the six Republican appointments. In the term that ended last year, the gap was 14 percentage points in favor of Republican officials.
The change can be explained by strategic coordination. The court-appointed Democrats have not hesitated to combine unanimous decisions with conservative outcomes, according to the Washington University Supreme Court database. The proportion of liberal decisions in unanimous cases in this term of office is only 30, the lowest since at least 1953.
But history changes in split cases, with 64 percent of the decisions labeled liberal, the highest since 1968.
“During that tenure,” said Professor Epstein, “was the expectation of a number of split decisions, with the three Democratic appointments getting the short end of the stick. So far, this prediction is far off. In split cases, Trump officials moved the court to the left. If someone has lost out, it’s the most conservative judiciary of the year, Alito. “