IT SOUNDS LIKE the set-up for a Veep-style political satire: In 2012, the U.S. Fish and Wildlife Service declared Edward Poitevent’s Louisiana land—which had been in his family since the end of the Civil War—a critical habitat of the dusky gopher frog, a species that hadn’t been seen in Louisiana for 50 years. Poitevent was leasing the land to a timber company at the time. By locking down the land, the feds were freezing $34 million in economic activity—all for a frog that didn’t live there.
The U.S. Fish and Wildlife Service claimed the Endangered Species Act gave it sweeping powers to preserve Edward’s property for the missing-in-action amphibian.
Pacific Legal Foundation attorneys disagreed. We brought Edward’s case to the Supreme Court, together with the timber company, Weyerhaeuser, that leased Edward’s land.
You’re probably thinking this sounds like a politically charged case that would divide the Supreme Court, pitting Justices with a soft spot for federal agencies—and tiny frogs—against Justices with a penchant for property rights and business.
But that’s not what happened.
In Weyerhaeuser Co. vs. United States Fish and Wildlife (2018), the Supreme Court handed down a unanimous decision for PLF and Edward Poitevent. Only eight Justices participated in the case because Justice Brett Kavanaugh was still being confirmed when oral arguments took place. But all eight Justices agreed that the U.S. Fish and Wildlife Service had wildly overreached.
“According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,” Chief Justice John Roberts wrote in the opinion. “Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as a critical habitat unless it is also habitat for the species.”
Even Justice Sonia Sotomayor—who, according to the Sierra Club, has “the best environmental credentials of anyone nominated to the Supreme Court in the modern environmental era”—took Edward Poitevent and the timber company’s side over the U.S. Fish and Wildlife Service and the dusky gopher frog.
Many people believe 6-3 or 5-4 decisions are the norm at the Supreme Court, and that Justices usually split along consistent ideological lines. The assumption is that liberal-leaning Justices and conservative-leaning Justices rarely agree with each other. When the Supreme Court handed down a unanimous decision in the NCAA antitrust case last summer, sports commentator Trey Wingo told his 980,000 Twitter followers that unanimous Supreme Court rulings are rare. “A 9-0 Supreme Court ruling is the equivalent of finding a unicorn and a Yeti at the same time under a rainbow with a pot of gold and they’re both speaking three languages,” he tweeted.
But Wingo was wrong: A unanimous decision is actually the most common type of Supreme Court decision. In the 2020-21 term, Justices issued unanimous rulings in 29 cases—or 43% of the total 67 decisions issued during the term. Another 10 cases were decided 8-1. Only 15% of decisions were polarized along ideological lines.
This is as it should be. The Supreme Court is not “a third house of the national legislature,” as FDR once called it. Justices are not voting for the outcome they want; they’re ruling on matters of law. Unanimous decisions have always been common because in a large chunk of cases, Justices agree on what the law is or means.
In fact, of PLF’s 14 victories at the Supreme Court, a whopping seven were decided unanimously. An eighth case, Minnesota Voters Alliance v. Mansky (2018), was decided 7-2: Justices Ruth Bader Ginsburg and Elena Kagan voted with the majority, with only Justices Sonia Sotomayor and Stephen Breyer dissenting. Sotomayor and Breyer didn’t even dissent on the merits; they just thought the Minnesota Supreme Court should have had “a reasonable opportunity to pass upon and construe the statute.”
Supreme Court Justices have repeatedly tried to tell the public that their rulings are not reflections of partisan politics or personal preferences.
While speaking at the University of Notre Dame last fall, Justice Clarence Thomas fielded a question about public misconceptions of the Court. “I think the media makes it sound as though you are just always going right to your personal preference,” Justice Thomas answered. “So if they think you are antiabortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician. That’s a problem. You’re going to jeopardize any faith in the legal institutions.”
Justice Amy Coney Barrett made a similar point during a speech at the University of Louisville. “Here’s the thing,” she told the audience. “Sometimes I don’t like the results of my decisions. But it’s not my job to decide cases based on the outcome I want.”
The late Justice Antonin Scalia may have said it best: “The judge who always likes the results he reaches is a bad judge.” For Justice Scalia, being a good judge meant he once found himself writing a blistering dissent in defense of a rape suspect’s Fourth Amendment rights. In Maryland v. King (2013), the Supreme Court held that the State of Maryland did not violate criminal defendant Alonzo Jay King, Jr.’s rights when it collected King’s DNA prior to conviction and matched it to an unsolved rape. The Court’s decision was 5-4, but it wasn’t split neatly by ideology: Justice Breyer joined the so-called “conservative” Justices in the majority opinion, while Justices Scalia, Ginsburg, Kagan, and Sotomayor dissented.
“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes,” Justice Scalia acknowledged in his dissent. “[T]hen again, so would the taking of DNA samples from anyone who flies on an airplane … But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
The late Justice Ginsburg, who strongly supported First Amendment and immigrant rights, once found herself writing a unanimous opinion that allowed the prosecution of an immigration advocate. Evelyn Sineneng-Smith ran an immigration consulting firm in San Jose, California. She was charged with violating a federal law that prohibits anyone from encouraging illegal immigration for financial gain. The Ninth Circuit found that the law violated the First Amendment, but the Supreme Court unanimously reversed the Ninth Circuit’s decision. Writing for the Court in United States v. Sineneng-Smith (2019), Justice Ginsburg chastised the Ninth Circuit for ruling on the issue of constitutional overbreadth when that issue hadn’t been raised by Sineneng-Smith. “[A] court is not hidebound by the precise arguments of counsel,” she wrote, “but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”

Yet people seem to forget that the justices are, to put it simply, lawyers doing law. When Justices find consensus or make legal conclusions that appear to contradict their personal sympathies, their votes often surprise the public.
The New Yorker called the Supreme Court’s 2020-21 term “surprising” because “[d]uring a time when the country has been starkly divided on matters ranging from the pandemic to the Presidency, the Court has largely avoided partisanship.”
“So much for a rock-solid 6-3 conservative Supreme Court majority,” Bloomberg Law wrote.
It’s not just the unanimous decisions that surprise people; it’s also the number of “strange bedfellow” alignments in which the High Court split along non-ideological lines. The Justices voted in 21 different patterns over the 2020-21 term. When you look closely at their reasoning in these “strange bedfellow” cases, you see that judges are ruling on the specific meaning of laws—not making sweeping policy pronouncements.
In Borden v. United States (2020), for example, the lineup was “strikingly nonideological,” as one law professor put it. Justice Gorsuch, appointed by President Trump, joined three Democrat-appointed Justices in a plurality opinion arguing that reckless aggravated assault should not be considered a “violent felony” under the definition set by the Armed Career Criminal Act. Justice Thomas, appointed by President George Bush, wrote a separate concurrence that agreed (mostly) with the conclusion of the plurality but focused on a different phrase in the Act. “The plurality focuses on the latter part of the operative language: ‘against the person of another,’” Justice Thomas wrote. “I rest my analysis instead on a separate phrase: ‘use of physical force.’” Meanwhile, the other conservative-leaning Justices dissented.
In HollyFrontier Cheyenne Refining v. Renewable Fuels Association (2021), Justices Breyer and Barrett both found themselves aligning with unexpected benchmates: Justice Breyer, appointed by President Clinton, joined the majority opinion, written by Justice Gorsuch, which held that fuel refineries could ask the Environmental Protection Agency to extend their exemptions from a renewable fuel requirement even if the refineries’ previous extension had lapsed. Meanwhile Trump appointee Justice Barrett penned a dissent, joined by Obama appointees Justices Kagan and Sotomayor, which argued that the word “extend” necessarily implies continuity of something still in existence. (“Consider a hotel guest who decides to spend a few more days on vacation,” Justice Barrett wrote. “That guest likely would ask to ‘extend [her] visit.’ Now suppose the same guest returns to the same hotel three years later and, upon arrival, requests to ‘extend’ her prior stay. The hotel employee would no doubt scratch her head.”)
In the so-called “Cursing Cheerleader” case, Mahanoy Area School District v. B.L. (2021), every Justice except Justice Thomas agreed that a public school could not punish a student for her off-campus speech. After Pennsylvania high school student B.L. failed to make the varsity cheerleading team or to secure her preferred softball position, she posted a Snapchat photo with the caption: “F—k school f—softball f—k cheer f—everything.” Even though she posted it over the weekend while off-campus, the school suspended her from the junior varsity cheerleading team for a year. The Court held that the school violated B.L.’s First Amendment right to express herself.
What’s particularly interesting about the Cursing Cheerleader decision is that Justice Breyer—at the time considered the second-most liberal Justice on the Court, after Justice Sotomayor—wrote the majority opinion, while Justice Alito—considered the second-most conservative Justice, after Justice Thomas—wrote a separate concurrence. By comparing the two writings, you can see how two very different Justices can find themselves in alignment on a case. While Justice Breyer wrote about “America’s public schools [as] the nurseries of democracy” and argued schools have a strong interest in protecting the “marketplace of ideas,” Justice Alito focused on the fact that “In our society, parents, not the State, have the primary authority and duty to raise, educate, and form the character of their children.” While parents delegate some of that authority to schools when their children are on campus, that authority will rarely extend to off-campus speech. True, B.L’s speech eventually made its way to campus, but it wasn’t disruptive. It merely “upset” some other students. And “[t]he freedom of students to speak off-campus would not be worth much if it gave way in the face of such relatively minor complaints,” Justice Alito wrote. (Justice Thomas, for his part, analyzed the scope of free speech at the time the Fourteenth Amendment was passed (which incorporated the First Amendment against states) and argued that because B.L.’s off-campus speech was later shared on-campus, and because it had “a proximate tendency to harm the school environment,” the school was within its rights to suspend the cheerleader.)
By looking closely at decisions like this—or by looking at PLF’s own successful record at the Supreme Court, with 14 victories over 35 years, half of them decided unanimously—we see that when attorneys build strong legal cases, they can achieve a cross-ideological consensus on the Court and win.
PLF’s victories at the Supreme Court
In the past 35 years, Pacific Legal Foundation has won 14 cases at the Supreme Court.
