Seven Myths About the Roberts Court, Tested Against Its Own Opinions

There is a way to test any claim about the Supreme Court, and almost nobody uses it. Read the opinions. Not the headline, not the segment, not the tweet that summarizes the segment. The opinions.

When you do, a different Court appears from the one on the evening news. It is a Court of nine people who disagree with one another in patterns that are far harder to chart than "six Republicans against three Democrats." The people who sell the simple story have a reason to sell it, and I would like you to have a reason to doubt it.

The Roberts Court is the Court that has sat since Chief Justice John Roberts took his seat in 2005. Below are seven claims about it that you will hear again and again. For each one I state the claim, test it against specific cases, and give a verdict. Where the claim is partly true, I say so. Some of these myths are told by critics of the Court, and a few are told by its friends.

Myth one: the Court always sides with Republicans

The claim. Put a case with a partisan flavor in front of the Roberts Court and the conservatives will deliver for the Republican side every time.

The test. Consider the Trump administration's own record. In Department of Commerce v. New York (2019), the Court sent the administration's census citizenship question back to the agency, in an opinion by Chief Justice Roberts, who found that the stated reason for the change seemed to have been contrived. The Court did not hold that a citizenship question is unconstitutional. In Department of Homeland Security v. Regents of the University of California (2020), a five-to-four Court, again with Roberts writing, held that the administration's rescission of the DACA program was arbitrary under the Administrative Procedure Act, because the agency had not given adequate reasons.

Then take Trump v. Vance (2020). The question was whether a sitting President is absolutely immune from a state grand jury subpoena for his personal financial records. The Court said no, seven to two, in an opinion by Roberts. Two of the justices the President himself had appointed, Gorsuch and Kavanaugh, concurred in the judgment, and the case went back to the lower courts.

The verdict. False. The Court has ruled against the administration of the Republican who appointed three of its members, in cases the Republican side cared about deeply. A Court that did what the myth says would be unlikely to have produced those three. What is true is that the Court's conservative wing leans toward a particular view of text, history and the structure of government, and that view often, though not always, produces results Republicans welcome. That is a reason to disagree with the method, if you wish. It is not proof of partisanship.

Myth two: the Court never rules unanimously

The claim. In a polarized time the justices cannot agree on anything.

The test. Many of the Court's decisions each term are unanimous. The exact share changes from year to year, and the best place to check is the end-of-term statistics compiled by SCOTUSblog or the Supreme Court's own opinion pages. Rather than quote a percentage from memory, let me give you cases.

In Fulton v. City of Philadelphia (2021), the Court held nine to zero that the city could not exclude Catholic Social Services from foster-care work because the agency would not certify same-sex couples, since the city's contract allowed exceptions it refused to extend to the agency. The justices wrote several concurrences that disagreed about how broad the ruling should be, but they agreed on the judgment. In Trump v. Anderson (2024), all nine agreed that Colorado could not remove a presidential candidate from its ballot under Section 3 of the Fourteenth Amendment, though they split on how much the opinion should say about enforcement.

The verdict. False, and the myth is easy to check. The justices agree on the outcome in a large share of cases, and the ones that split along familiar lines are a minority that gets most of the coverage. The coverage is the reason the myth persists, and for how that happens, see How the Press Covers Supreme Court Decisions, and What the Stories Leave Out. A story about a nine-to-nothing ruling on an obscure statute does not make the front page.

Myth three: the Court always favors business

The claim. The Roberts Court is a wholly owned subsidiary of the Chamber of Commerce.

The test. There is a real pattern here worth acknowledging: the Court has been receptive to many arguments from business. But "always" is a long way from "often." In Mallory v. Norfolk Southern Railway (2023), the Court held, five to four, that a state may require a corporation to consent to being sued in its courts as a condition of doing business there, and the opinion was written by Justice Gorsuch, though only parts of it commanded a majority. The railroad lost. In Consumer Financial Protection Bureau v. Community Financial Services Association of America (2024), the Court upheld the way Congress funds the Consumer Financial Protection Bureau, over the objection of the trade groups that challenged it, by a vote of seven to two in an opinion by Justice Thomas.

And Bostock v. Clayton County (2020), treated below, was a case in which the employer was on the losing side of a ruling by the Court's textualists.

The verdict. Mostly false as stated, because of the word "always." Scholars who study the Court's business docket argue about how its rate of pro-business rulings compares with earlier courts, and I will not quote a number I cannot source. What is certain is that the Court has ruled against business in significant cases, sometimes for reasons that any conservative would recognize: the Court read the law as written, and the written law did not favor the company.

Myth four: the six conservatives vote as a bloc

The claim. Where the Court splits, it splits six to three, and you can predict every vote from the party of the president who appointed the justice.

The test. Look at the unlikely coalitions. In Allen v. Milligan (2023), the Court held five to four that Alabama's congressional map likely violated Section 2 of the Voting Rights Act, with Chief Justice Roberts writing and Justice Kavanaugh joining the three liberals. In Moore v. Harper (2023), the Court held six to three that the Elections Clause does not give state legislatures independent power to set federal election rules free of state-court review. The majority was Roberts, Kavanaugh, Barrett and the three liberal justices, and Thomas, Alito and Gorsuch dissented. For the background, see Moore v. Harper and the Independent State Legislature Theory That Lost.

In Ramos v. Louisiana (2020), a case treated in Ramos v. Louisiana and the Jim Crow Roots of Split-Jury Convictions, Justice Gorsuch wrote for a majority that included Justices Ginsburg, Breyer and Sotomayor, and Justice Kavanaugh concurred in part, while Justice Alito dissented, joined by the Chief Justice, and Justice Kagan also dissented. In June Medical Services v. Russo (2020), Chief Justice Roberts provided the fifth vote to strike down a Louisiana abortion law, explaining that precedent required it, though he had dissented in the earlier case that created the precedent.

The verdict. False. There are blocs, and the Court's most contested cases often do divide along familiar lines. But the justices disagree about method as well as about outcomes, and the lines shift from case to case. Roberts and Kavanaugh sit in the middle on many questions. Gorsuch is a libertarian streak on criminal procedure and Indian law. Thomas and Alito are the most willing to depart from precedent. Anyone who predicts your vote from your appointing president is guessing, and will lose some of those guesses.

Myth five: Bostock and McGirt could not have happened

The claim. If the Court were as conservative as its critics say, there is no way it would have written Bostock v. Clayton County or McGirt v. Oklahoma. And if it did, the critics were wrong about it.

The test. This myth gets told in both directions, and it is worth stating both. Critics of the Court say it is reactionary; the existence of these two cases refutes them. Friends of the Court say that the justices simply follow the law, which these cases confirm, but also that these cases show the conservative justices going soft.

Bostock (2020): the Court held, six to three, in an opinion by Justice Gorsuch, that Title VII of the Civil Rights Act of 1964, which bars employment discrimination "because of... sex," covers firing someone for being homosexual or transgender. Gorsuch's reasoning was a textualist one: if you fire a man for being attracted to men but would not fire a woman for the same attraction, you have discriminated on the basis of sex. Roberts joined the majority. Alito and Thomas dissented, and Kavanaugh dissented, arguing that ordinary meaning, not literal meaning, should govern. Textualists have argued among themselves ever since, and Bostock Was Written as Textualism, and Textualists Split Over It sets out the quarrel.

McGirt v. Oklahoma (2020): the Court held, five to four, in another Gorsuch opinion, that Congress had never disestablished the Creek reservation in eastern Oklahoma, so the state could not prosecute Jimcy McGirt, a member of the Seminole Nation, for crimes committed on that reservation. Roberts dissented, joined by Alito and Kavanaugh. The opinion rested on the idea that only Congress may break a treaty, and that courts may not do it for the sake of practicality.

The verdict. The myth is false, for a reason that matters. The two cases show that textualism and originalism do not always yield the results the political Right prefers. A method that sometimes costs you a policy win is a method with integrity. A conservative who cheers the method only when it wins has missed the point of having one. That the two decisions were written by a justice appointed by President Trump is the best answer to the claim that the Court is a partisan operation.

Myth six: the Court ignores precedent

The claim. The conservative majority tears up settled law whenever it likes.

The test. The Court has overruled precedents, notably Roe v. Wade and Planned Parenthood v. Casey in Dobbs (2022) and Chevron in Loper Bright (2024). Those are significant. But look at the pattern across the terms: most of the Court's work applies existing precedent, and the Chief Justice in particular has a long record of preferring narrow rulings and small steps. In June Medical he applied a precedent he disagreed with. In many other cases the Court has refused to take the larger step that the more aggressive members of its majority wanted. The doctrine of stare decisis, discussed at Stare Decisis Explained, and the Factors Justices Weigh Before Overruling, remains a live constraint.

The verdict. Partly true, and worth thinking about. The Court has been willing to overrule a few major precedents that it considered badly reasoned, and it has defended doing so with a full account of the factors. That is a serious thing, and critics are entitled to argue that the Court went too far in a given case. But "ignores precedent" is wrong. The Court follows precedent in the great majority of its decisions, and in a few it decides that the precedent was wrong, which has always been part of how the Court works.

Myth seven: the Court decides everything important in the dark

The claim. The Roberts Court has moved its real power to a "shadow docket" of unexplained emergency orders, and the opinions you read are a sideshow.

The test. There is something to this one, and I would rather give it a fair hearing than dismiss it. The emergency docket has grown in importance, and in recent years the Court has issued emergency rulings with brief explanations or none at all, in cases of real consequence. Both parties complain about it, and that tells you something about its merit. The Emergency Docket Explained, and Why Both Parties Complain About It describes how it works and why it is controversial.

But the myth overstates. The Court's merits docket is where the great doctrinal questions are still decided, in argued cases with full briefing and written opinions. The cases cited in this post, from Dobbs to Moore, are merits cases. A reader who wants to understand the Court can do so by reading those opinions, which are public. And the justices explain themselves at length, in majority opinions, concurrences and dissents, in far more words than they used a century ago.

The verdict. Mostly false, with a kernel of truth. The emergency docket is a real and legitimate subject of criticism, from the Left and the Right. But it is not where most of the Court's reasoning lives.

What the myths have in common

Step back and look at the seven. In each case the myth is a simplification that makes the Court easy to talk about. It is easier to say "the Court is partisan" than to say "five justices read the Voting Rights Act one way in Milligan and four read it another." It is easier to sell a story of villains than a story of disagreement about method.

I want to offer an argument about why this matters, in three numbered points.

1. The simple story makes citizens worse at holding the Court to account. If every decision is a partisan vote, there is nothing to read and nothing to criticize except the result. If a decision is a piece of reasoning, you can ask whether the reasoning is sound, which is the only question that matters.
2. The simple story is false in both directions. The Right is wrong when it assumes that a conservative judge will always deliver conservative results, and the Left is wrong when it assumes that a conservative judge is a hack. The only way to know is to read.
3. The Court's own method is the best answer. If the justices must justify results from the text, the history and the precedents, then the opinions are open to testing by any citizen. That is a source of strength, and it is why the claim that the Court is a political branch in robes does damage. If it were true, the rule of law would be a fiction. Because it is mostly false, the rule of law can be defended. See Are Conservative Justices the Real Activists? A Rebuttal in Six Points for the longer argument about method.

For the way the press frames these stories, the Media Watch page and Ten Words the Press Uses About the Supreme Court, Translated for Normal People offer a decoder.

The strongest case for the other side

I should not leave the critics without their best argument. The best form of their claim is not that the Court is a rubber stamp, but that its conservative majority has a consistent philosophy and that this philosophy happens to align with the commitments of the party that appointed its members. They note that the appointment process favors candidates with known leanings, that a group of justices drawn from one legal movement will agree more than a random sample, and that the effect over time is a Court whose decisions favor one side on the large questions.

That is a respectable observation, and I do not wave it off. My answer is that it describes a Court with a judicial philosophy, which is what the Constitution contemplates. A President nominates judges whose approach he trusts, and the Senate gives or withholds consent. A judge's view of how to read the Constitution is a legitimate thing to consider. What would be improper is a judge who decided cases on party loyalty, and the cases above are the evidence that this is not what happened.

The case in brief

1. The claim that the Court always sides with Republicans fails against Department of Commerce, Regents and Trump v. Vance, all rulings against the administration.
2. The claims that the Court never rules unanimously and always favors business fail against Fulton, Trump v. Anderson, Mallory and the CFPB funding case.
3. The six-to-three bloc myth fails against Allen v. Milligan, Moore v. Harper, Ramos and June Medical, where the coalitions shift.
4. Bostock and McGirt show textualism costing the conservative side policy wins, which is the mark of a method.
5. The Court does overrule some precedents and does use an emergency docket, and both deserve criticism on the merits, but neither makes the Court a partisan machine.

What you can do: choose one decision mentioned here, find the full opinion on the Supreme Court's website, read the syllabus and the first dissent, and notice who joined whom.