For the first time in a generation, there are six Conservative Supreme Court justices. Over time, this sextet will gradually push the Court to the right. Yet three of them are already sounding the alarm bells. Twice this quarter, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have warned that Judges Brett Kavanaugh and Amy Coney Barrett lack spine.
In a case of excessive force, the Tory trio wrote that the two new judges were “unwilling to … endure the criticism that “refusal of the prisoner’s appeal” would inevitably arouse “.
It is quite common for judges to criticize the legal judgments of their colleagues. But rarely do judges claim that their colleagues are motivated by cowardice. The putative 6-3 conservative majority is, in fact, far from monolithic. Right now we have a 3-3-3 court. There are three progressives, three conservatives and three members from the middle. Only time will tell if Justices Kavanaugh and Barrett will align with Chief Justice John Roberts’ PR-based jurisprudence, or whether they will uphold their constitutional principles.
Perhaps the most unsatisfactory case of this term has been Fulton v. City of philadelphia. Catholic social services have refused to certify unmarried and same-sex couples as potential foster families for adoption. In response, Philadelphia refused to contract with Catholic Social Services. The Court of Appeal upheld this decision on the basis of Division of Employment c. Smith (1990). This precedent, written by the late Justice Antonin Scalia, held that the government can generally impose a burden on religion as long as the law is applied neutrally. And, according to lower courts, Philadelphia has not targeted Catholic social services.
Over the past three decades, a mountain of scholarship has shown that Judge Scalia was wrong, and Black-smith was wrong. Indeed, Catholic Social Services expressly asked the Court to annul Black-smith. Thomas, Alito and Gorsuch responded to this call. However, Barrett and Kavanaugh refused to override Black-smith. They doubted that Black-smith was right and said he was ready to come back to the case in the future, but did not think this case presented the right opportunity.
Gorsuch was not happy with this half measure. He drew up a sharp agreement, joined by his two conservative colleagues. Gorsuch accused the majority of “dodging[ed] the question today. In a not-so-subtle warning to the other two Trump appointees, Gorsuch wrote that “these cases will continue until the court has the courage to provide a response.” Gorsuch called out Kavanaugh and Barrett for their lack of. This personal attack undoubtedly reflects latent tensions within the Court, and those tensions have now spread to public opinion.
The 3-3-3 divide appeared in several other religious freedom cases this quarter. In South Bay United Penetcostal Church v. Newsom, the six center-right judges ruled that California cannot ban indoor worship during the pandemic. But the majority were divided over whether the state could ban singing in places of worship. Thomas and Gorsuch would have allowed the singing. Alito reportedly gave the state 30 days to prove that the California ban would actually curb the spread of COVID-19. Barrett wrote a deal, which Kavanaugh joined, believing the churches were failing to meet their burden and that the singing ban could remain. Barrett therefore used his first separate court writing to rule against the believers.
After the court’s tenure ended last week, Kavanaugh and Barrett once again closed the door to a long-standing battle for religious freedom. Barronelle Stutzman is a florist in Washington State. In 2013, she refused to make a deal for a same-sex union. After nearly eight years of litigation, the Washington Supreme Court ruled against Stutzman.
But on July 2, the United States Supreme Court refused to review that decision. Thomas, Alito and Gorsuch would have taken it over, but in the Supreme Court it takes four votes to grant a motion for writ of certiorari and hear a case. Because the three conservatives disagreed with the denial of certiorari, we can conclude that both Kavanaugh and Barrett rejected Stutzman’s appeal. Once again, the Thomas-3s were prepared to publicly shame Trump’s two new appointees.
Alito kept his harshest criticisms of his new colleagues to Lombardo v. City of Saint-Louis. In this case, the police immobilized a prisoner by forcefully forcing his back on him. Soon he stopped breathing and died.
The parallels with the George Floyd case should be obvious. The lower court dismissed the allegation of excessive force. The case sat on the Supreme Court’s docket for almost 10 months, a sign that some sort of negotiation was underway. Finally, in June 2021, the court took an unusual step. The judges did not dismiss the case, as they did for Barronelle Stutzman. The court also refused to hear the case. Instead, the judges asked the lower court to reconsider whether it was following the correct legal standard.
Alito, joined by Thomas and Gorsuch, expressed his dissent. Based on the elimination process, Kavanaugh and Barrett were okay with the court’s odd punt. Alito savagely has his colleagues. He wrote that the Court was “unwilling to bear the criticism that âthe dismissal of the appealâ would inevitably generate. âIn all likelihood, this punt only delayed the inevitable victory of the government. But, in the meantime, the Supreme Court has the credit of keeping the ‘case alive. Once again, the Court released its dirty laundry in public. The three Tories alleged that Kavanaugh and Barrett were afraid of public criticism, and instead chose to flag virtue.
The court’s center-right bloc has also fractured over the electoral law. No, not the Kraken case, nor the ill-fated Texas lawsuit. Instead of, Pennsylvania Republican Party v. Degraffenreid asked a crucial question: Can the courts change the rules governing elections?
In February 2021, well after President Joe Biden’s inauguration, the court declined to consider the appeal. Once again, the three Conservatives have expressed their disagreement. Based on the elimination process, Kavanaugh and Barrett refused to take up the case. In dissent, Thomas wrote that the court had âan ideal opportunityâ to resolve this issue âbefore the next electoral cycleâ. The majority’s ârefusalâ was therefore âinexplicableâ, âconfusingâ and âdisconcertingâ. Thomas added: “one wonders what awaits this Court”. And by “Court” he undoubtedly meant Kavanaugh and Barrett: if either of them had accepted, the Court would have heard the case.
Kavanaugh’s silence in Degraffenreid is particularly “confusing”. Before the elections last November, he ruled that the courts could not change the electoral rules. Perhaps the tumultuous aftermath of the election, including the events of January 6, made him think. The Wall Street Journal asked himself, “Where has Judge Brett Kavanaugh gone, since he was the fourth vote in October?” And Linda Serre from Tthe New York Times observed that Barrett might have refused to grant a review because “the prospect of voting to hear a last resort appeal from Trump would be awkward to say the least.”
We can’t be sure why the two new judges kicked in. Degraffenreid. But pundits from all political backgrounds have accused Trump’s appointees of voting based on non-jurisprudential concerns about the optics. And Thomas, Alito and Gorsuch were “baffled”, just like us.
Consider one final case before Barrett’s tenure in court. Gee c. Family planning, decided last summer, considered whether the abortion provider could challenge Louisiana’s refusal to fund the organization. In December 2018, two months after Kavanaugh’s confirmation, the court declined to hear the case, leaving in place a victory for Planned Parenthood.
Thomas disagreed, joined by – you guessed it – Alito and Gorsuch. This case presented a fairly technical dispute over Medicaid law. But, because it was an abortion, all the usual rules necessarily went out the window. Thomas warned that “a tenuous connection to a politically tense issue does not justify the abdication of our judicial duty.” He quoted Alexander Hamilton in Federalist n Â° 78: “We are not ‘to consult popularity’, but instead of relying on ‘nothing … but the Constitution and the laws’.” His colleagues, including Kavanaugh, unfortunately “consulted[ed] popularity.”
Maybe my reviews seem picayune. Without a doubt, this Court leans conservatively. But we need to take these warnings from Thomas, Alito and Gorsuch seriously. They sound the alarm bells about Kavanaugh and Barrett. These two jurists, who are still at the very beginning of their decades-long career, are already raising serious red flags.
We can always agree to disagree on legal arguments. Indeed, I vehemently disagree with Gorsuch’s strained argument that the Civil Rights Act of 1964 prohibits LGBT discrimination. But I will always applaud Gorsuch’s willingness to take an unpopular stance among conservatives. Courage is a muscle that must be exercised; if the courage is not weakened, it atrophies. Look no further than Chief Justice Roberts, who has withered into a hollow shell of the jurist he once was. Now Roberts is striving for moderation for the sake of moderation, regardless of the legal principles that apply. I pray that Judges Kavanaugh and Barrett, whom I both respect deeply, resist this siren song. Rather, they should follow Hamilton’s lead and rely on “nothing but the Constitution and the laws”.
Josh Blackman is Professor of Constitutional Law at the South Texas College of Law Houston and co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
The opinions expressed in this article are those of the author.