The Volokh Conspiracy
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This Is Not the 5-4 Supreme Court Split You Were Looking For
A statutory interpretation case, involving national emergencies, splits the justices in an unusual way.
The Supreme Court issued its decision in Feliciano v. Department of Transportation today, revealing a quite unusual 5-4 split among the justices.
Justice Gorsuch wrote for the Court, joined by the Chief Justice, and Justices Sotomayor,, Kavanaugh, and Barrett. Justice Thomas dissented, joined by Justices Alito, Kagan, and Jackson.
This split is particularly interesting because it cannot be explained by usual ideological or doctrinal categories. This is not a right-left split, nor a formalist-pragmatist split. The opinion also does not divide the justices along other identifiable methodological lines, as the Court's most committed textualists are divided. While it is not unusual to see the Chief join the Trump nominees in disagreement with Justices Alito and Thomas, we don't typically see the liberal justices split in this way (Sotomayor v. Kagan and Jackson), and the opinion.
For what it's worth, this is the sixth opinion this term in which the Court has split 5-4, and we have seen only one 6-3 split thus far, but the Court still has a ways to go before the end of the term. The justices have issued 25 opinions in argued cases (and 29 opinions overall) so they have over half of this term's cases left to resolve.
