Justice Ketanji Brown Jackson, who was confirmed to the U.S. Supreme Court on September 28, 2021, is the only justice to have joined every majority decision without a separate concurrence in the first six merits opinions released this term. This makes her the “last justice standing” among her peers, according to departing SCOTUSblog editor James Romoser.
Jackson’s consistent presence in the majority decisions is notable, given that the rulings have scrambled the usual ideological blocs. However, Adam Feldman of the Empirical SCOTUS blog cautions that her streak is likely an anomaly, considering that the first six merits opinions are not particularly “ideologically laden.”
One such case involved a highly paid oil-rig employee seeking overtime pay under the Fair Labor Standards Act of 1938. The majority opinion comprised Chief Justice John Roberts and Justices Elena Kagan, Clarence Thomas, Sonia Sotomayor, Amy Coney Barrett, and Jackson.
Feldman notes that it is “pretty unusual” for a new justice to remain the last justice to agree in full with every majority decision after joining the court in the same calendar year that the term began. Justice Brett Kavanaugh is the only other current justice with that distinction. He was in the majority without concurrences in his first 12 decisions during his first term on the court, which began in 2018.
In 2006, Justice Samuel Alito joined the Supreme Court in the middle of the 2005 term. He was the last justice standing in the first 15 cases decided after he joined the Supreme Court.
Feldman also looked at the justices who were the last justice standing in the last ten terms. They were:
- 2021: Kavanaugh (six decisions)
- 2020: Roberts and Kavanaugh (14 decisions)
- 2019: Roberts (19 decisions)
- 2018: Kavanaugh (12 decisions)
- 2017: Roberts (nine decisions)
- 2016: Kagan (29 decisions)
- 2015: Anthony Kennedy (19 decisions)
- 2014: Stephen Breyer (13 decisions)
- 2013: Kennedy (19 decisions)
- 2012: Roberts (25 decisions)
- 2011: Roberts (14 decisions)
While it remains to be seen whether Justice Jackson will continue to be the “last justice standing” in future opinions, her early streak in the majority suggests that she may have an influential role on the court. With six of the nine justices appointed by Republican presidents, the Supreme Court is often seen as leaning conservative. However, the court’s decisions in the first six opinions of the current term show that the justices’ views cannot be easily categorized as liberal or conservative.
These decisions and Justice Jackson’s role in them suggest that the Supreme Court’s ideological makeup may not be as predictable as some have assumed. With the potential for additional vacancies on the court in the coming years, the appointment and confirmation of new justices will likely be closely watched by legal scholars, politicians, and the public.