Trump Lost Big in the Supreme Court – and Conservatives Swing the Balance Against Him

The Supreme Court is political. (Hold for applause.)

It’s one of the easiest taglines in our current public discourse. The Court sits at historic low public approval ratings, hovering between the high 30s and low 40s. You’d be better off criticizing Congress or Kanye West, but only slightly.

What exactly do we mean when we say the Court is political though? The answer can vary, of course, but typically it boils down to: (1) the Justices reverse-engineer their legal (or, “legal”) analysis to yield preferred policy outcomes; and (2) I don’t like those outcomes. Conservatives have prevailed more often than liberals recently, so naturally we’ve seen a widening gap in perception; over 70% of Democrats disapprove of the Court, compared to only 26% of Republicans. It’s easy to like the Court when you win, and aspersions flow freely when you lose.

The Supreme Court’s October 2025 Term is now over, and the results at once reinforce and undermine glib assertions about its political tendencies. Yes, the Court is political, but not quite in the sense that liberals often proffer: “It’s a partisan six-to-three majority that reflexively rules for Trump and conservative causes on every big case.”

It’s true that the Justices reached a six-to-three conservative-to-liberal split on several important rulings this Term. Witness, for example, the six-to-three decision in the Louisiana redistricting case that tore down the last remaining pillar of the Voting Rights Act and opened the door to the dissolution of majority-Black congressional districts in the South. Or consider Monday’s ruling permitting the president to fire the heads of executive branch regulatory agencies (except for the Federal Reserve) for essentially any reason he wants, or no reason at all.

But some of this Term’s six-to-three decisions are attributable more to differences in judicial methodology than to politics. Take last week’s pair of rulings upholding draconian Trump administration immigration policies – one that severely curtails migrants’ ability to apply for asylum and another that revokes temporary protected status from hundreds of thousands of Haitian and Syrian refugees.

In both cases, the conservative majority undertakes cold, clinical analysis of statutory language, while the dissenting liberals offer strained textual alternatives paired with emotionally-charged policy arguments. In the asylum case, for example, the conservatives maintain that the law’s requirement that an applicant must “arrive in” the United States means exactly that. Writing for the majority, Justice Samuel Alito asserts that “[a] running back does not arrive in the end zone when he reaches the 1-yard line. A guest does not arrive in a house when he knocks on the front door. An army does not arrive in a city by encamping outside its walls.” The argument is logical and linguistically (hence statutorily) correct. Justice Sotomayor counters unconvincingly in dissent that close enough should be good enough. For example, she argues, a person can be considered to “arrive in” Washington DC when she lands at Reagan National Airport just across the river in Virginia. (Well, no. The airport is close to Washington DC, but not in it.)

Policy, not law, truly drives the liberal dissents. In the asylum case, for example, Justice Sotomayor writes powerfully about the legacy of the Holocaust and predicts that, as a result of the ruling, “more people will die.” If the majority and dissenting opinions were submitted as competing policy papers, I’d side with the liberals; they have the better conception of fair and humane asylum practice. But the problem is that any judge’s job is to interpret the law as written, not to craft preferred outcomes based on implausible readings of the law. If a justice wants to make policy, she can run for Congress.

The larger flaw in the argument that this is an entrenched six-to-three conservative Court hellbent on enacting a political agenda is that, throughout this term, Trump and his top causes suffered staggering setbacks because conservative justices ruled against him. Consider:

– The Court in February struck down the President’s signature economic initiative, emergency international tariffs, by a majority featuring three conservatives (Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett) joining liberal Justices Sotomayor, Elana Kagan, and Ketanji Brown Jackson.

– Trump’s effort to deploy National Guard troops on the streets of Chicago failed when the Court left in place a lower court ruling prohibiting the action. That decision was seven-to-two, with Roberts, Gorsuch, Barrett, and Brett Kavanaugh joining the three liberals.

– Roberts and Barrett, together with the three liberals, rejected the effort led by the Republican National Committee (joined by the Trump administration) to strike down state laws that permit counting of mail-in ballots after Election Day.

– A five-Justice majority including Roberts, Kavanaugh, and the three liberals issued a ruling that protected Federal Reserve Governor Lisa Cook from Trump’s effort to fire her without meaningful process.

– Roberts, Gorsuch, Kavanaugh, and Barrett preserved (for now) broad, remote access to the abortion pill mifepristone, which is used in a majority of all abortions nationwide.

– On Tuesday, a six-Justice majority comprised of Roberts, Kavanaugh, Barrett, and the three liberals repudiated Trump’s effort to gut Birthright Citizenship and restored our longstanding principle that any person born in the United States is a citizen.

There is no perfect, unified field theory that neatly explains everything the Court did this Term. But we can extract certain plain truths.

Five of the nine Justices have become eminently predictable based on policy outcomes, whatever the law might say. Justices Clarence Thomas and Samuel Alito voted for Trump and conservative results in essentially every major case, without fail, and at times they contorted the law to get there. The same goes the opposite way for the three liberals. Neither Justices Sotomayor, Kagan, nor Jackson cast a single vote for Trump or a conservative outcome in any case with broad policy implications, with the lone arguable exception of the decision permitting states to ban transgender athletes from women’s sports, which saw the liberal justices partially concurring and partially dissenting.

Given that their respective ideological preferences aligned nearly perfectly with their purported legal analysis, it’s fair to label these five justices “political.” Can either side be right that Trump was legally correct on either everything or nothing?

That leaves four justices more or less in the middle: Roberts, Gorsuch, Kavanaugh, and Barrett. (Hat tip to Sarah Isgur of SCOTUSblog who posits persuasively in her book Last Branch Standing, written before this rerm ended, that we should view the current court not as six-to-three but rather as three-to-three-to-three, with Roberts, Kavanaugh, and Barrett in the middle. I might add Gorsuch, given his votes this term against Trump on tariffs and mifepristone.)

Had this middle group stuck to conservative orthodoxy and ruled based on policy outcomes, we’d be looking at a very different country today: global tariffs in place, National Guard on the streets, mail-in ballots curtailed, the Fed vulnerable to the President’s whim, abortion medication largely unavailable, Birthright Citizenship in tatters.

Liberals might object that what passes for that middle is really just a collection of conservatives who can tolerate most of Trump’s excesses, but not quite all. But the fact is, over this past term in particular, only those four justices have shown any ability to dispassionately assess the law and – surprisingly often, in cases with massive stakes – to reach real-world outcomes that don’t jibe with their own ideology.