The Myth Of A Divided Court: Unanimity At The Supreme Court

For all the progressive hand-wringing about a so-called “hard-right Supreme Court,” the data point to something far more measured, even reassuring. Contrary to the narrative that this Court is gripped by ideological warfare, lurching from one 6–3 ruling to the next, the actual record shows a surprising degree of consensus. Indeed, roughly half of all decisions made by the current justices have been unanimous. This is not a Court at war with itself. It is, more often than not, a Court in agreement, even across the ideological spectrum.

Since Justice Ketanji Brown Jackson joined the bench in 2022, the Court’s composition has remained stable, offering scholars and commentators a clear window into its decision-making dynamics. During the 2022 term, nearly 50% of the Court’s rulings were 9–0 decisions. The 2023 term followed closely, with approximately 44% of decisions unanimous. These are not mere statistical anomalies. They reflect a broader pattern that decisively undercuts the claim that the Court is narrowly partisan, dangerously lopsided, or fundamentally broken.

This matters because the dominant progressive narrative insists otherwise. According to liberal commentators and legal academics, the current Court, with its 6–3 conservative majority, is out of step with American democracy and hopelessly polarized. The trope is as familiar as it is misleading: Justices appointed by Republican presidents, we are told, march in lockstep to advance a reactionary agenda, while the liberal minority offers noble dissents in vain. This simplistic framing is politically useful, particularly when mobilizing calls for drastic judicial reform, including court-packing schemes that would expand the bench and dilute its alleged “conservative bias.”

But the facts refuse to cooperate. Not only are unanimous rulings the norm rather than the exception, but deeply split decisions, those dreaded 5–4 outcomes that are often held up as proof of partisan fracture, are vanishingly rare. In both the 2022 and 2023 terms, only around 10 to 13% of rulings were 5–4. Compare that to historical norms. In past decades, such divisions were far more common, especially in politically turbulent eras such as the 1950s Warren Court or the 1970s Burger Court.

Moreover, many of the cases that draw media attention, the abortion decisions, the affirmative action rulings, the headline-grabbing controversies over guns and religion, do not capture the bulk of the Court’s work. Most Supreme Court cases are not dramatic ideological showdowns. They involve arcane questions of statutory interpretation, administrative law, procedural standards, and jurisdictional nuance. In these realms, legal reasoning often transcends political identity. It is here where the Court most often speaks with one voice.

To understand why, consider how the justices actually do their work. Despite their philosophical differences, they share a deep institutionalist respect for precedent, process, and legal coherence. Chief Justice John Roberts, in particular, has made it a point to maintain the legitimacy of the Court by seeking broader consensus wherever possible. Even Justice Sonia Sotomayor and Justice Clarence Thomas, often caricatured as polar opposites, find common ground more often than public discourse would suggest.

Some may object that the frequency of unanimous decisions merely reflects strategic behavior. According to this view, the justices sometimes mask deeper divisions in order to preserve the Court’s image. Perhaps. But if that is true, it only bolsters the central point: even when they disagree in private, the justices believe it is vital to present a unified legal front when possible. That is not dysfunction, it is statesmanship.

Others insist that the 6–3 decisions, which constituted about 21% of cases in 2022 and roughly 34% in 2023, are proof of conservative hegemony. Yet this interpretation ignores how frequently those decisions depart from ideological expectations. In many of these cases, conservative justices do not simply vote as a bloc. They write concurrences that critique or limit majority reasoning. They split on specific doctrinal grounds. And liberal justices, too, have joined opinions that would make progressives uncomfortable. The 6–3 figure, in other words, is not a synonym for partisan orthodoxy. It is a feature of jurisprudential complexity.

Consider, for example, Bostock v. Clayton County (2020), where Justice Neil Gorsuch authored a 6–3 majority opinion extending Title VII protections to LGBT employees, hardly a decision favored by social conservatives. Or look to Brnovich v. DNC (2021), a voting rights case where Justice Alito’s majority opinion was grounded in an interpretation of Section 2 of the Voting Rights Act that drew critique not just from the left, but also from some on the originalist right who found the methodology lacking. The ideological narrative dissolves under scrutiny.

This has not stopped calls for Court reform, especially from those who regret that Democrats failed to pursue court expansion in 2021 when they held unified control of government. It is now fashionable among progressive thinkers to decry this “missed opportunity,” lamenting that the Democratic Party lacked the will to alter the judicial balance. The irony, of course, is that this impulse, to reshape the Court for partisan gain, would itself do incalculable harm to the very legitimacy and unity they claim to defend. If the current Court can produce nearly 50% unanimous rulings, then what precisely needs “reforming”?

We should also remember that the notion of a “balanced” judiciary has never meant ideological quotas or partisan symmetry. The Court was not designed to reflect the median voter or mirror the partisan breakdown of Congress. It was designed to interpret the Constitution, with each justice bringing a lifetime of jurisprudential development to the task. That their conclusions sometimes align, even across political lines, is a testament to legal rigor, not ideological capture.

Alexander Hamilton, writing in Federalist No. 78, noted that the judiciary would be the “least dangerous” branch because it had neither the sword nor the purse. Its strength lay in judgment alone. That strength endures only so long as the public believes the Court operates as a forum for reasoned legal debate, not raw politics. The frequency of unanimous decisions is not just a rebuttal to the court-packing left; it is evidence that the Court still functions as Hamilton envisioned.

The story here is not one of a Court in crisis, but of a Court in intellectual motion, debating, deliberating, and often agreeing. There will always be contentious cases. But those are the exception, not the rule. A mature polity ought to be able to distinguish the loudest decisions from the most common ones. And those common ones, it turns out, show a Court more unified than any recent political narrative dares to admit.

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