I don't think it'd be legal, but when the court's this divided, there needs to be some penalty for losing 9-0. You're trying to do something that egregiously wrong and defend it?!
Second, the court's makeup is politically decided
Third, the court has in the past ( roe v wade ) chosen to be unanimous when reports say internally there was some dissenters.
Public mockery on teh interwebs?
But we’ll know more about how well that 3-3-3 theory holds as the body of opinions published by Justices Barrett and Jackson becomes more fleshed out.
That's an interesting take. I'm guessing the divisions are Bush appointees are institutionalists, Democrat appointees are partisans, Trump appointees are partisans?
The court is pretty heavily Textualist and/or Originalist with Justice Thomas at the Originalist extreme and Justice Gorsuch at the Textualist extreme, but along the less Institutional axis you have Justices Thomas, Gorsuch and Alito and along the more Institutionalist end you have Chief Justice Roberts (at the extreme) and Justices Kavanaugh and Barrett.
The liberal Justices tend to get lumped together, but it’s worth noting a couple of details: the original formulation of the theory of the 3-3-3 court was with Justice Breyer who retired and was replaced by Justice Jackson. Justice Kagan is probably the most Institutionalist of these 3 and has always had an excellent rapport with the Federalist Society, Justice Sotomeyer in my estimation has always been the one most likely to defer to the Executive branch when they are a party to a case (but I formed that opinion during the Obama administration, it may not have aged well and I should re-examine it regardless) and I don’t feel confident in the slightest giving a good assessment of Justice Jackson without seeing more from her, I barely feel like we’ve seen enough from Justice Barrett and some think she might be more with the Thomas and Gorsuch end than with the Chief and Kavanaugh going by this current term which would make this a 4-2-3 court instead.
Long story short, it’s nuanced but all most people see is who appointed who and the final tally in cases with heavier partisan splits, but the manner in which a case was decided (the controlling opinion in other words) matters more for future jurisprudence than the judgement itself which is important primarily to the parties involved. Given a choice, Roberts pushes for cases to be decided as narrowly as possible, but that’s harder to do when he’s more likely to be the 6th vote than the 5th vote.
Thomas, Alito, Coney Barrett tend to be partisan conservatives.
Kavanaugh, Gorsuch, Roberts, and Kagan tend to be mainstream jurists (whether that's "institutionalist," I'm not sure). If you see Kagan side with the conservatives or Gorsuch, Roberts, or Kavanaugh side with the liberals, it's usually in favor of the mainstream, centrist, legal establishment view. The differences between them tend to relate to mainstream legal debates (e.g., the proper role of Chevron deference in the administrative state; Kagan was an admin law professor, whereas Gorsuch in particular is skeptical of Chevron deference).
Sotomayor, Brown Jackson tend to be partisan leftists.
> Obama only got one person on the benchThey are passing problems upstream and making the SC waste time setting precedent on cases that should be blindingly obvious.
The attorneys on the losing side might be the most "guilty" because they should have known better.
If the lower court ruled based on precedent - even if it was misapplied - then they’re doing what’s expected of them.