Supreme Court news: Liberal justices’ ‘dissent rate’ lowest since Roberts joined in 2005

With 27 opinions left for the Supreme Court to hand down before the end of the month, the rate of dissents from the three-member liberal minority bloc is standing at its lowest point in the past 25 years.

As of June 2, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson have only issued five dissenting opinions, or responses disagreeing with the majority, out of the 29 argued and signed decisions. That’s roughly a 5% dissent rate and represents the lowest rate since Chief Justice John Roberts joined the court in 2005, according to Adam Feldman, founder of the widely cited blog Empirical SCOTUS.

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While Feldman said instances like the current low rate of dissents or the initially slow release of opinions made this term “unpredictable in some ways,” he contends that the Roberts court is “backloading” the polarizing decisions such as cases surrounding affirmative action, election law disputes, and a fight between religious freedoms and anti-discrimination laws.

“When I look back historically, there have been in the last 10 years or so several terms we didn’t have division along ideological lines until June. So this isn’t unprecedented that you wouldn’t have a divided court until June,” Feldman told the Washington Examiner.

Dr. Adam Feldman/ Empirical SCOTUS

But the momentarily low dissent rate is still striking given that around the same time last year, the three liberal justices amassed 26 dissenting votes by the end of May, amounting to a 33.3% dissent rate.

The primary difference is President Joe Biden nominated Jackson to succeed the seat held by now-retired Justice Stephen Breyer. Another factor, Feldman said, is the subject matter of cases, as last year, the court ruled on polarizing issues surrounding Second Amendment rights and allowed the curtailing of abortion access in states.

Jackson on Thursday became the first liberal justice this term to offer a solo dissent on an argued and signed decision ruling against a union that caused financial damage to a company during a strike. Before that, the three Democratic-appointed justices had only dissented with other justices in the six-member conservative bloc.

For instance, Jackson dissented in the May pork products case along with Justices Roberts, Brett Kavanaugh, and Alito. Justices Sotomayor and Kagan dissented along with Justices Amy Coney Barrett and Clarence Thomas in a February decision surrounding the Bank Secrecy Act. And in a May ruling against the Andy Warhol Foundation, Kagan found herself dissenting with the chief justice, opposing her common voting companion Sotomayor’s majority decision.

Adam Feldman/ Empirical SCOTUS

Feldman said the low rate of dissents could be spurred by the fact that over 50% of the argued and signed decisions this term have been 9-0 unanimous and featured several concurrences, meaning a response that agrees with the majority opinion but for reasons not stated by the primary author.

“But if you really read into some of these concurrence, even in the union’s case, some of these concurrences read dissent-ish,” he said.

Feldman added there could be a “few things” to explain why the high court, which has sustained record-low approval ratings since overturning Roe v. Wade, is showing less disagreement so far this term.

“One is that I think it does deflect a little bit from this sense of, you know, that the court is really, really divided,” Feldman said, contending, “That’s kind of reading the tea leaves.”

But Feldman also said it’s possible there are more behind-the-scenes negotiations and bargaining at play, as history shows the Roberts court is no stranger to making deals to obtain varying outcomes in high-profile cases.

“We can see from the concurrences that there were justices on the Right that wanted to push further against this union … being able to do whatever they want to do. But rather than dissent, they can concur and just push against the limiting principle in the majority opinion,” Feldman said.

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The likely short-lived but notably low rate of dissents raises may mean the justices are finding ways to bridge their differences.

“Even though this trend is unlikely to hold through June, this alludes to the court’s ability to bounce back from one of the most ideologically tinged terms ever last term,” Feldman added.