Analysis: What the missing center has meant for the Supreme Court
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — For more than a half century, the Supreme Court was anchored by a series of conservative centrists who controlled the most anticipated end-of-term rulings in June, pragmatic justices like Sandra Day O’Connor and Anthony Kennedy.
O’Connor, a former state senator with keen political instincts, also created a social glue by encouraging lunch together after oral arguments, arranging bridge parties and occasionally organizing trips to meet with foreign judges. She believed in keeping the justices together even when they feuded on the law.
Today’s justices are ruptured in multiple ways, most importantly in their intractable views. They are split 6-3 along ideological lines, and even within the six-justice conservative bloc, the justices divide over how far to upset precedent and roll back past cases.
A particularly defining characteristic of today’s bench is the absence of a pragmatic middle. The consequences have been building for years, but they have crystallized both in recent decisions and the way the justices are working together.
The Louisiana and Alabama voting-rights cases this spring that make it nearly impossible to remedy intentional race discrimination in redistricting demonstrate the historic change underway.
Those rulings did more than topple legal precedents. Coming in the middle of the country’s current midterm primaries-cycle, they have disrupted electoral practices across the country in a way that mostly benefits Republicans.
They fit a pattern that, along with reversal of Roe v. Wade and the end of racial affirmative action in higher education, reflects a mindset the opposite of the pragmatic considerations Kennedy, O’Connor, and before them, Justice Lewis Powell, held. All three were appointed by Republican presidents.
When O’Connor and Kennedy voted in 1992 to preserve the 1973 right to abortion in Roe, they said they could not dismiss the cost of reversal to “people who have ordered their thinking and living around that case.”
They cast the court’s dilemma in broader societal terms: “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
A decade earlier, when Powell cast the key fifth vote to ensure a right to public education for children of undocumented immigrants, he wrote, “It hardly can be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons.”
Unlike today’s majority under Chief Justice John Roberts, neither Powell, nor O’Connor and Kennedy, set out to wholly remake the country’s laws.
“Both Justices Kennedy and O’Connor cared about what the country as a whole thought about the court,” said University of Michigan law professor Leah Litman, a former Kennedy clerk. “They provided a middle to the court because they cared about the middle, median views in the country and didn’t want the Supreme Court to stray too far from that. And rightfully so – it doesn’t work to have an apex, unelected court that’s catering to a smaller and smaller minority section of the country.”
The disappearance of a constructive center likely contributes to the current testiness in written opinions and apparent difficulties in resolving cases. With about 10 days to go in the current 2025-26 session, the justices have 17 cases left, several concerning the boundaries of President Donald Trump’s power.
The disputes involve Trump’s attempt to restrict birthright citizenship, defying the 14th Amendment guarantee that anyone born on US soil is automatically a US citizen, and Trump’s effort to fire the heads of independent agencies, specifically at the Federal Trade Commission and the Federal Reserve. Roberts has in past cases sought to expand presidential power over executive agencies such as the FTC, putting him in sync with Trump.
“I thought there was an institutional pragmatism to Roberts,” said Georgetown University law professor Brad Snyder, “but I kind of had on rose-colored glasses.”
Snyder pointed to the Louisiana decision in April that dramatically curtailed voting rights and the 2024 opinion that gave Trump significant immunity from prosecution as he was running for reelection and still faced charges of election subversion from 2020.
Both decisions reinforced the public perception that the justices are, as Snyder put it, “politicians in robes, an idea that Roberts has otherwise worked hard to dispel.”
As the third appointee of Trump’s first term, Justice Amy Coney Barrett was the catalyst for the transformed court, having succeeded the late liberal Ruth Bader Ginsburg in October 2020. That meant, for the first time in modern history, the court had a six-justice conservative supermajority.
The consequence was not merely a one-vote difference, between five and six, on the right. The spare vote for what’s needed to produce a majority emboldened conservatives, as seen in the successive reversals of milestone rulings on abortion rights, in 2022; college affirmative action, in 2023; and the redistricting overhaul this year.
In between, by the familiar 6-3 split, the justices in 2024 enhanced presidential immunity and in 2025 declared that federal judges lack authority to issue universal injunctions to block presidential policies.
Equally important: Because it takes four votes even to grant a case (as opposed to five to decide it), the three Democratic-appointed liberals now need at least one of the Republican-appointed conservatives to join them to even grant a hearing for an appeal.
The 5-4, conservative-liberal split that defined the court in the decades before 2020 was more fluid. To be sure, O’Connor (who served from 1981-2006) and Kennedy (1988-2018) were conservatives. They joined their right-wing colleagues in the 2000 case of Bush v. Gore, giving Texas Republican Governor George W. Bush the White House over Democratic Vice President Al Gore in the middle of a disputed Florida vote count. Separately, Kennedy was solidly with the conservatives as he wrote the Citizens United v. Federal Election Commission decision of 2010 that led to more corporate money in election campaigns.
But O’Connor and Kennedy also voted to retain decades-old reproductive rights and regularly sought a middle ground, for example, in tests of the separation of church and state.
Kennedy also wrote the decision legalizing same-sex marriage nationwide and kept open the possibility that federal judges could block extreme partisan gerrymanders. In 2019, the year after he left the bench, the court ruled 5-4 that federal judges lack the authority to decide if politicians went too far in drawing district lines to protect partisans.
Kavanaugh and Barrett transform the court
The changes that brought the country to this moment began in 2018, when Justice Brett Kavanaugh – another former Kennedy clerk – succeeded Kennedy, and, in 2020, the appointment of Barrett. Because of the long history of a pragmatic center, Supreme Court scholars watched in the early years to see if either of them or another justice filled the void.
“There were those of us who thought Barrett might play that role,” said Harvard law professor Richard Lazarus. “To a small degree she has, but she is not pivotal the way Powell, O’Connor or Kennedy were through the years.”
Barrett, like Roberts, has occasionally sided with the left in select cases. But her motivation is rooted in her textualist methodology and desire for narrow results, rather than the pragmatism that dates back at least to Powell (who served from 1972-1987).
As she has been promoting her book in recent months, Barrett has explained her legal approach and the “limits of my role.” On law school campuses and at other public appearances, she has contrasted her focus on the precise text of a law to “having pragmatism be your guide” or using “just your sense of justice in resolving cases.”
She did not join the majority in the most aggressive part of the Trump v. US decision. She also dissented, in a separate 2024 case, from the majority view that government prosecutors exceeded the bounds of an obstruction statute as they charged people involved in the January 6, 2021, attack on the US Capitol.
Still, Barrett was fully with the majority to reverse a half century of abortion rights in Dobbs v. Jackson Women’s Health Center Organization. Roberts, who was a sixth vote to limit reproductive rights, separated himself from the majority that toppled Roe v. Wade. Roberts wanted to restrict Roe but retain some protection for a woman’s right to end a pregnancy.
The most consistent members of the far right are Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. Thomas, who has served since 1991, decried in an April speech people who “recast themselves as institutionalists, pragmatists, or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences, and their country.”
Solidly on the left wing are Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Tensions between the current right and left blocs have been boiling. In May, after the conservative majority voted to speed up the release of an order tied to their Louisiana voting-rights decision, dissenting Justice Jackson said the majority was trying to influence elections in the state. Alito, joined by Thomas and Gorsuch, called Jackson’s opinion “baseless and insulting.”
University of Chicago law professor Aziz Huq traces the current tensions to the 2022 early leak of the Dobbs opinion reversing Roe v. Wade. “Ever since the leak of the Dobbs opinion, I think we’ve seen public evidence of frictions amounting to more distrust than is normally the case among the justices.”
Shortly after the leak, Thomas lamented an absence of the collegiality he experienced with former Chief Justice William Rehnquist and O’Connor, who cajoled all the justices into eating lunch together and had a reputation for keeping the conversation around the table going.
In the era leading up to Rehnquist’s 2005 death and O’Connor’s 2006 retirement, Thomas recalled the justices “actually trusted” each other.
“We might have been a dysfunctional family, but we were a family. … You laughed together. You went to lunch together every day.”
The court still holds a private lunch after the daily oral arguments. It’s just that it’s easier to skip these days.
The-CNN-Wire
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