Commentators, Chill: The Court’s Conservatives Are Consistent Constitutionalists

The U.S. Supreme Court building in Washington, D.C., July 2, 2020 (Jonathan Ernst/Reuters)

The Supreme Court’s term is not yet over, but it is not too early to offer some perspective — and perhaps a splash of cold water — on some of the melodramatic recent commentary on the supposedly deep divisions on the Court. Perhaps the most prominent was Adam Liptak’s commentary on Friday alleging that “the right side of the court is badly fractured and its liberal members are having a surprisingly good run.”

That was an odd takeaway in a term that so far had shown a surprising degree of unanimity, not to mention a premature commentary to make, with nearly 25 percent of the Court’s opinions yet to be issued, when the highest concentration of ideologically divisive decisions typically occurs at the end.

Liptak’s observation about fractured conservatives overlooks the stark difference between the current Court’s Republican appointees and those of the past. Consider, for instance, the state of affairs nearly 30 years ago, when Clarence Thomas was confirmed to the Court. That left only one Democratic appointee on the Court, Justice Byron White, and he usually voted with conservatives. Yet that Court handed down disastrous decisions in 1992 regarding abortion (Planned Parenthood v. Casey) and high-school graduation prayer (Lee v. Weisman), in both cases with White in dissent.

For many years, the Court was less constitutionalist in a number of areas: It was less protective of political speech and Second Amendment rights, yet more inclined toward the freewheeling invention of new constitutional rights not found in constitutional text or history. It was less protective of the separation of powers, but note the progress that has been made between Morrison v. Olson (1988), when Justice Antonin Scalia was the lone dissenter in a decision upholding the independent counsel statute, and the recognition of the president’s removal power over principal officers in Seila Law LLC v. Consumer Financial Protection Bureau last year and Collins v. Yellen yesterday. Yesterday also marked the 16th anniversary of the Court’s notorious takings decision in Kelo v. City of New London, which the Court appropriately marked with a decision in Cedar Point Nursery v. Hassid that helped bring back the Takings Clause in the face of California’s outrageous authorization of union organizers to physically occupy growers’ property.

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And of course, as I have previously noted, there has been a transformation in the law on the religion clauses of the First Amendment, including a winning streak on religious liberty punctuated this term by the Court’s decisions regarding Covid restrictions in Roman Catholic Diocese of Brooklyn v. Cuomo and foster care in Fulton v. City of Philadelphia. In the latter case, five justices expressed their disagreement with another regrettable precedent of decades past — Employment Division v. Smith (1990), which undermined the Free Exercise Clause in a decision by Justice Scalia joined by the conservative bloc of that time. The justices disagreed only on whether the case presented the opportunity to overrule Smith, but of the sea change since 1990 there should be no doubt.

Liptak skirts that sea change as if the present moment were isolated from any past context. He also observes that Justice Brett Kavanaugh has voted with the majority in more divided cases than any other justice, quoting Lee Epstein as to how “extraordinary” the 85 percent rate was at which he did so. More extraordinary to me is what it means to have Kavanaugh as the median justice on the current Court. Kavanaugh’s record is one of consistent constitutionalism in every area noted above. That was predictable from his long paper trail, which included his expressed hope to “put the final nail in” Morrison v. Olson.

Chief Justice John Roberts was the justice most often in the majority last term, during which he flipped from his own prior positions in abortion and immigration cases while joining Bostock v. Clayton County’s rewriting of the Civil Rights Act of 1964 to include sexual orientation and transgender status — all over Kavanaugh’s dissent. And even Roberts’s departures from originalism and textualism have been fewer than those of the previous justice in the middle, Anthony Kennedy, who was known for his willingness to make stuff up on an array of social issues and to invoke international law in interpreting the Constitution.

It must be tempting for any journalist writing about the Court to overdramatize conflict. The reality is that the paradigm of past eras, in which there was a center bloc that would depart dramatically in its view of the Constitution from both a liberal bloc and a conservative bloc depending on the case, is obsolete. This is especially so after the confirmation of Amy Coney Barrett, which gives the Court five originalists. That does not mean they will never split on close questions of legal text, such as the interpretation of the Computer Fraud and Abuse Act in Van Buren v. United States. More often, however, their differences go to the willingness to take certain cases (and any number of factors may determine a vote for or against a grant of certiorari), to find an issue moot, or to avoid reaching a constitutional issue in the face of other disagreements. But fundamentally, these justices do not display dramatic differences in how they view the contours of the Constitution.

Liptak’s observation about the three liberal justices’ good run, which he bases on their voting with the majority slightly more often than the Republican appointees in divided cases — note the metric looking only at divided cases — is already obsolete. Four of the five cases decided so far this week without a unanimous judgment found at least one member of the liberal bloc in at least partial dissent.

As for the Court opinions that came before, the three most significant potential constitutional issues during a term that is less known for headline-grabbers had arisen in Cuomo, Fulton, and the latest challenge to Obamacare, California v. Texas. Only the latter case had an outcome that can be obtusely labeled as liberal, but in fact, it was decided on the plaintiffs’ lack of standing with a 7–2 supermajority that included Justice Thomas. All three liberal justices dissented in Cuomo, and they were part of Fulton’s unanimous judgment because they agreed with three other justices that another unanimous free-exercise judgment in 1993 provided ample precedent to invalidate Philadelphia’s deplorable treatment of Catholic Social Services.

If anything about this term to date has been remarkable, it is that all three liberals joined the Court’s judgment in the Fulton case, which was decided over the protests of politicians and activists on the Left whose arguments went too far for the liberal justices. Since Liptak’s article appeared, two more significant constitutionalist rulings, Collins and Cedar Point Nursery, drew dissents exclusively from liberal justices. We shall see whether the remaining decisions continue this term’s trend, which has been remarkably devoid of living constitutionalism.

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