Politico

Opinion | What’s Behind the Conservative Rift on the Supreme Court


After Amy Coney Barrett replaced Ruth Bader Ginsburg on the Supreme Court last fall, plenty of court watchers assumed that the bench would start churning out an endless line of conservative opinions. But that didn’t happen. While there were some conservative wins—most notably on the limits of the Voting Rights Act and unionizing—this past term was far more notable for all the sweeping conservative opinions that never came.

With six Republican appointees on the court, why aren’t we seeing the consistent conservative outcomes that the right cheered for and the left warned of?

The answer lies with the two-dimensional nature of the Supreme Court. Many court watchers are still plotting the justices along a single, horizontal axis of legally conservative to legally liberal. And they are left reaching for increasingly head-scratching explanations for why a justice like Brett Kavanaugh—with a long history of conservative opinions from his days as a lower court judge—can find himself often siding with someone who is quite liberal, or against another justice just as conservative.

But when it comes to the Supreme Court, there’s another axis at work too, which I call the “institutionalist” axis. On one end are justices who confine their considerations to what’s known in the legal world as “the four corners of the briefs”—the factual and legal analysis on the pages that advocates present to the court. On the other end are the institutionalists, who take into account factors beyond the reasoning laid out before them, like the importance of upholding past precedents of the court. When you consider the justices on this two-dimensional plot, with conservative to liberal on the horizontal axis, and “four corners” to institutionalist on the vertical axis, the recent decisions start to make more sense.

Consider the example of Justice Neil Gorsuch and Justice Brett Kavanaugh. Both adhere to conservative models of legal interpretation: originalism and textualism. Originalism—the one true faith of legal conservatives—is the idea that the Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted,” as the late Justice Antonin Scalia put it. Textualism relies entirely on, as you might imagine, the text as the “the alpha and the omega of the interpretive process,” according to Fifth Circuit Judge Don Willett.

Gorsuch and Kavanaugh are both deeply conservative when viewed along this axis. They agreed that the text of the Voting Rights Act did not bar Arizona from requiring voters to cast their ballots in their assigned precincts because the measure was “a usual burden of voting” and not, as the statute required, an “abridgement of the right … to vote on account of race or color.”

Of course, one need only look at last term’s Bostock decision to see that even those who subscribe to the same school of thought can strongly disagree on how to apply it. In that case, Gorsuch and Chief Justice John Roberts joined with the four liberals to hold that the word “sex” in a nondiscrimination statute necessarily included sexual orientation and gender identity. Kavanaugh along with the other conservatives in dissent argued that textualism required “courts [to] adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.”

But where the real disagreements are happening today is along the institutionalist axis, where justices have very different opinions on the role of the Supreme Court. Toward the lower “four corners” end, justices like Gorsuch believe that a case’s outcome should be determined by the law and the facts of that case alone. But for a more institutionalist justice like Kavanaugh, the role of the court itself is an important factor. An institutionalist, for example, may believe the court is charged with leading the judicial branch by issuing opinions that will provide a clear and precise road map to lower courts that can guide their decisions in future cases; that outcomes should be practical and aid rather than hinder the efficient functioning of government; that precedent is important to follow because it affects the court’s credibility with the public; and that changes to the law should be incremental and narrow because “inconstancy and versatility,” as Edmund Burke put it, undermine the integrity of the rule of law itself. To put it perhaps too simply, Gorsuch’s conservative judicial philosophy is unaffected by the ramifications of the outcome of a case; Kavanaugh’s is.

The difference becomes even more clear when you look at the statistics of this term. Gorsuch fully agreed with Justice Clarence Thomas—arguably the most conservative justice on the court and a “four corners” justice too—73 percent of the time. Kavanaugh only fully agreed with Thomas 46 percent of the time—the same percentage that liberal Justice Elena Kagan agreed with Thomas.

As one example, Gorsuch and Kavanaugh disagreed on whether the directive that the government provide “a notice to appear” at a hearing in an immigration statute meant that the government had to put all of the information in “a” single document. Gorsuch—who wrote the majority opinion—held that the word “a” meant that the government needed to provide “‘a’ single document containing the required information, not a mishmash of pieces with some assembly required.” Kavanaugh dissented, arguing that Gorsuch’s reading “spawns a litany of absurdities” and will “impose serious administrative burdens on an immigration system that is already overburdened, thereby harming other noncitizens.”

As we saw in the Bostock case about sex discrimination, Kavanaugh may actually be to the right of Gorsuch along the conservative axis, but as with the case above, he is significantly above him on the institutionalist axis. And while we only have one term to affix Justice Barrett’s position, it’s increasingly clear that she is both quite conservative and often institutionalist.

On the liberal side, Justice Sonia Sotomayor is closer to “four corners,” while Elena Kagan is an institutionalist especially when it comes to upholding precedents of past courts. In a case about whether states were required to have unanimous jury verdicts in serious criminal cases, Kagan sided with Alito in dissent against the criminal defendant because she noted that the majority was overruling 50 years of precedent. At oral argument in the case, she said, “It doesn’t matter whether [the previous decision] was wrong because overruling something requires more than just the decision be wrong.” Last term, Kagan didn’t author any opinion that altered the court’s precedent while Sotomayor only authored one opinion that didn’t alter the court’s precedent.

Understanding this second axis changes how each side may want to consider future judicial nominees. As Republicans have learned, nominating a justice with a conservative track record is no guarantee of what kind of justice he or she will be if they don’t take into account the institutionalist axis. They have been so wholly focused on screening potential nominees for their ideology that they might have discounted any serious inquiry into their institutionalist philosophy. Whether conservative or liberal, partisans tend to dislike institutionalist judges for the very reason that their opinions are influenced by something other than conservative or liberal legal ideology. (This is also why Republicans are quick to venerate Justice Samuel Alito, a conservative four corners justice, but view the chief justice, a conservative institutionalist, as a traitor.)

Of course, it’s hard to discern institutionalist philosophy before a justice makes it onto the Supreme Court, since it’s all about how the justice sees his or her role on that court. Most nominees previously served as appellate judges on a lower court where they never had the opportunity to overturn Supreme Court precedent. And our scripted confirmation hearings are unlikely to give a window into that thinking either. Kagan, a justice who has turned out to be a high institutionalist, told the Senate Judiciary Committee, “In many circumstances, precedent is the most important thing,” and Gorsuch, who turned out to be a relatively low institutionalist, told them that “You start with a heavy, heavy presumption in favor of precedent in our system.”

This dynamic marks an interesting era for the Supreme Court, one in which the outcomes won’t be as predictable as many assume they will be. In one telling statistic, there were eight cases that divided 5-4 this term, with five different alignments of justices. Kagan joined Alito, Thomas, Gorsuch and Barrett in one case. Thomas joined with Stephen Breyer, Sotomayor and Kagan in two cases. It’s also why it is incorrect to think of today’s Supreme Court as a 6-3 court. We really have a 3-3-3 court, with 3 conservative institutionalists, 3 conservative “four corners” justices and 3 liberals. (The “four corners”/institutionalist split among liberals seems to have less bearing on the cases’ outcome.)

Statistics support this 3-3-3 alignment as well. Liberals Breyer, Sotomayor and Kagan agreed with each other on the outcome of cases 76-85 percent of the time according to SCOTUSBlog, and Roberts, Kavanaugh and Barrett, all conservative institutionalists, agreed 75-84 percent of the time. In both cases, those in the trios agreed with each other more than with any of the other justices. Interestingly, the three that are often described as the most conservative—Thomas, Alito and Gorsuch (the four corners justices)—fully agreed with each other less often. That’s probably not because of their institutional differences, but because they don’t all share the same conservative judicial philosophies.

It’s possible, of course, that these odd alignments are the growing pains of a new court. But perhaps this is the new court. If so, it would mean a court that is far less predictable along the ideological liberal-conservative axis, which will potentially build credibility for the court with the public over time and undermine efforts by either side to capture the court by adding seats or restricting its jurisdiction. But with the impending exit of Breyer and Thomas in the years to come, partisans on both sides will undoubtedly learn to look for justices that are low institutionalists and therefore are more predictable along the horizontal, ideological axis.

In the meantime, this fall the court will begin a term that could decide whether to overturn Roe v. Wade, whether there is a constitutional right to carry a gun outside the home and whether colleges can continue to use race in their admissions processes. But don’t look for clear-cut wins for one or another political side: With this new court, it’s likely both sides will be dissatisfied with the outcomes.

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