SCOTUS
This Court has no moderate justices. It is a Court of threes.
Victories but also a cautionary tale from the SCOTUS for moderates and progressives
Last June, the Supreme Court overturned decades (Dobbs v. Jackson Women’s Health) and a century (Bruen v. NYS Rifle and Pistol Association) of settled law. Lawyers decried the disregard of precedent. Historians distinguished cherry picking “history and tradition” from scholarly history. Political scientists saw more evidence of a partisan political institution and highlighted the radical changes to separation of church and state, manipulation of “original intent,” impact of the Federalist Society, changes to the New Deal order, etc. Journalists and the public sensed a boldness in the 6-justice conservative majority.
Just a year later, this same Court upheld Section 2 of the Voting Rights Act of 1965 by a vote of 5–4. This is puzzling because Chief Justice John Roberts has attacked the VRA as a lawyer since the1980s and he wrote the opinion (Brnovich v. DNC) that eviscerated the VRA just two years ago. Court scholars have marveled over Robert’s new-found commitment to voting as “fundamental” and the need not to “blind ourselves to the consideration of race.” The conservatives voted with liberals in other cases to uphold the Indian Child Welfare Act (Justices Neil Gorsuch and Amy Coney Barrett joined Sotomayor, Kagan, and Jackson) and strike down the radical “independent state legislature theory,” a huge loss for conservatives that would have affected all elections going forward.
Moderates and progressives should celebrate the protection of voting rights (and a few other cases) and the absence of the crass partisanship of Dobbs. The Court acted radically last year — so it is tempting to see change. But this Court is not moderate. What we see is some individuation among four of the conservative justices — and protection of an institution that is increasingly seen as illegitimate in the court of public opinion.
No Moderates
Since the passing of Justice Ruth Bader Ginsburg and addition of Justice Amy Coney Barrett, two conservative justices must vote with the liberals. There is no one swing vote. This Court has no moderate justices. It is a Court of threes: liberals (Sotomayor, Kagan, Jackson); conservatives (Roberts, Kavanaugh, Barrett); and radical conservatives (Thomas, Alito, Gorsuch). Four of the conservatives have standards for procedure or particular issues that drive them — occasionally — to vote with the liberals.
To this point, Justice Kavanaugh voted to uphold the Voting Rights Act but that does not make him a moderate. The Alabama maps were an egregious case of voter dilution. Black voters make up 25% of Alabama’s voting population but the Republican Legislature packed them into a single district — Alabama has seven congressional districts — and the remaining Black voters were cracked into multiple districts to dilute their voting power. You could hardly make up such a case to deny a racial group the right to elect leaders of their choice.
Kavanaugh voted down the maps but in Fall 2022 he allowed those maps to affect the midterm elections. The District Court ruled the maps were unconstitutional but the justices used the secretive “shadow docket” (in which there are no opinions, precedents, or signed opinions) to let the maps stand for the midterm elections. On the Shadow Docket, Kavanaugh voted to keep those bad maps in Alabama — affecting other states that were being litigated — possibly affecting a tight election for the House.
Context matters. Before the Roberts’s Court decimated the Voting Rights Act in Shelby County v. Holder (2013), Alabama would have been required to pre-clear the maps with the US Attorney General or the DC District Court. Preclearance would have struck down the Alabama maps before the midterm elections. The new status quo is a toothless Voting Rights Act that will work — in an extreme case of voter dilution based on race.
Roberts’s views on guns, abortion, voting, affirmative action, civil rights, establishment of religion, power of the federal government, etc. are extremely conservative. What distinguishes him from the radicals is a commitment to procedure and the appearance of impartiality. Roberts voted to support a restrictive Texas abortion regulation in 2016 (along with radical conservatives, Thomas and Alito) but voted with liberals to strike down a similar Louisiana law four years later. Precedent and Court legitimacy mattered more than his substantive beliefs about abortion (which also explains why he wrote separately in Dobbs v. Jackson Women’s Health claiming that Roe and Casey did not need to be overturned to support a new abortion restriction).
Many code Justice Gorsuch as moderate because he recently voted with the liberal justices to support Indian sovereignty. Since his time on the 10th U.S. Circuit Court of Appeals, Gorsuch has defended the rights of tribes to govern themselves and insists that the tribes should be able to rely on treaties and other promises from states and the federal government. A few terms ago, Gorsuch voted with liberals to interpret Title VII’s “on the basis of sex” to protect sexual orientation and gender identity. But these cases are outliers. His support of the ultra-radical “independent state legislature theory,” disregard of precedent to strike down affirmative action, or support of Alabama’s dilution of the Black vote accurately reflect his conservative views and judicial philosophy.
One wrinkle for the conservative justices is the newest justice: Ketanji Brown Jackson.
Political scientists have long observed that descriptive representation matters and the Court has changed over time with regards to class, religion, ethnicity, and race). Justice Jackson has called the “original intent” bluff by focusing on how Congress explicitly intended the 14th Amendment to remedy the inequality of newly freed Black Americans in 1868.
In oral arguments — especially in the UNC affirmative action and the voting rights act cases — Jackson argued that any reading of the 14th amendment as “race neutral” was a modern retelling: “So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves. The legislator who introduced that amendment said that ‘unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen’ That’s not — that’s not a race-neutral or a race-blind idea in terms of the remedy.”
Did Jackson’s explicit use of Kavanaugh’s beloved “history and tradition” affect his vote? Make it harder for Roberts and Kavanaugh to join Justice Thomas (who dissented that the Voting Rights Act is unconstitutionally “race conscious”?
The court of public opinion may also play a role in some justices resisting radical decisions. The press has focused on the ethics of justices receiving lavish trips from individuals and institutions with vested interests in their decisions. The decision in Dobbs appeared partisan given that so many Republican justices had upheld the abortion precedents for decades. Confidence in the Court had been falling but, after Dobbs, NORC found public confidence in the Court to be the lowest since 1973 (when collection of data in the GSS began).
While it is tempting to imagine that six justices explicitly selected by Republican presidents to put forward a conservative agenda are moderating. Instead, what we see is six individuals who don’t move in lock step. Roberts and Barrett both seem irritated with lazy lawyering by conservatives who might expect the 6–3 conservative majority to hand them the decisions they want in both the voting rights and Indian Child Welfare Act cases. But, in the end, the conservatives came together in important cases to solidify a conservative and deeply partisan approach to the law.
Susan Liebell, Professor of Political Science, Saint Joseph’s University
Co-host, New Books in Political Science
