The High Court's conservative justices are in sync 'against incarcerated people or immigrants’: law professor

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

There appears to be one area of unanimity among the conservative justices on the U.S. Supreme Court. Kimberly Wehle — a law professor at the University of Baltimore School of Law — recently highlighted where they align. In an op-ed published by Politico, Wehle wrote:

"Of the 68 cases decided last term, 10 were resolved on 6-3 conservative-progressive splits; an additional one was by a similar 5-3 vote, with Justice Amy Coney Barrett not participating. More than half of these split decisions involved imprisonment, detention or deportation. It turns out the one area where the conservative justices agreed this term was on siding with the government against incarcerated people or immigrants."

Back in June, Justice Stephen Breyer noted that while divisions are common within the Court, "clear ideological breaks" are a rare phenomenon not often seen. During an appearance on the non-partisan National Constitution Center podcast, Breyer weighed in with his take on the splits.

"I mean, we agree almost half the time, we're unanimous," Breyer said, adding, "the five-fours are about, I don't know, 20 percent, 25 percent, 15 percent depending on the year. And it's not the same five and the same four."

But the unanimity regarding incarceration and deportation are troubling for Wehle.

"Because the criminal justice system in the U.S. is vastly over-represented by Black and brown defendants, who are five times more likely to end up in state prisons than whites, this predictable ideological split is not good news from the standpoint of racial and ethnic justice," Wehle wrote. "The extraordinary interpretive power of nine unelected justices cannot be overstated."

In 2014, a panel of scholars concluded that the John Roberts Court at that point "actually [produced] a notable number of rights-protective liberal decisions," and that "when the Roberts Court [was] most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record place[d] him at the Court's center."


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