The Supreme Court Is Now 6-3. What Does That Mean?

Opinion

The Supreme Court Is Now 6-3. What Does That Mean?

 

Will we see a cohesive conservative alliance? Or a disparate group of conservative justices?

By Linda Greenhouse

Contributing Opinion Writer

• New York Times

• Nov. 5, 2020, 5:00 a.m. ET

Amy Coney Barrett and President Trump at the White House last month. Her arrival at the Supreme Court may affect the influence of Chief Justice John Roberts. Credit...Doug Mills/The New York Times

 

 

We may not yet know who won the presidential election, but everyone knows that the Supreme Court now has a conservative 6-to-3 majority. And that the Senate’s Republican majority’s hardball tactics, driven by blatant cynicism, achieved that result during an amazingly compressed period of not even six weeks — from Justice Ruth Bader Ginsburg’s death in mid-September until Justice Amy Comey Barrett’s installation a week before Election Day.

 

For most of the period, culminating with the new justice’s klieg-lit nighttime photo op with the president on what I’ve taken to calling the White House’s Mussolini balcony, the question was, “Can this really be happening?” Now comes the next question: What does it mean to have a bloc of six?

By that, I’m not suggesting there won’t be conservative outcomes in case after case. There will be. Nor am I suggesting that when the Supreme Court decides a case, the bottom line doesn’t matter. Of course it does.

 

But the route the court takes to reach that bottom line is also highly consequential. By choosing one and not another, the court validates some lines of legal argument and forecloses others, with profound implications for the next round of cases. And when the routes to a common destination diverge — when the majority fractures over what theory to invoke or how far to run with it — it will raise questions about what message the court is sending and what it is prepared to say or do next.

 

The first day of the current term, Oct. 5, offered a powerful example. All eight justices who were then sitting agreed not to hear an appeal from Kim Davis, the Kentucky county clerk who, in the immediate aftermath of the Supreme Court’s 2015 decision on the right of same sex couples to marry, claimed a religious right not to issue marriage licenses to same sex couples. The justices’ refusal to hear the appeal left intact a federal appeals court’s ruling that Ms. Davis is not entitled to immunity from suit by two same-sex couples she had turned away.

 

The Supreme Court’s action, one of hundreds of similar denials the same day, might have attracted little attention except for an unusual “statement” issued by Justices Clarence Thomas and Samuel Alito. They had dissented from the court’s same-sex marriage decision, Obergefell v. Hodges, and their four-page statement was a shrill irredentist attack on what they labeled “this court’s alteration of the Constitution.” The two said they agreed that Ms. Davis’s appeal in its current preliminary posture was unsuitable for Supreme Court review. But they went on to say:

Nevertheless, this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.

There are a few things to note about this. Chief Justice John Roberts, himself a vigorous dissenter from Obergefell, didn’t sign the statement. Neither did Justices Neil Gorsuch or Brett Kavanaugh, two appointees of President Trump who were not on the court that decided Obergefell. Of five conservative justices, then, three chose not to put the court’s adherence to the precedent in play a month before the presidential election, while two picked precisely that moment to make a gratuitous and astonishingly aggressive move.

 

So what exactly was on display here? Were we seeing a conservative bloc, or a disparate group of five conservative justices, three conducting the court’s business in a normal manner while two used a failed petition as a platform for inviting an interested public to hurry up and bring the court a better case? And where, had she been on the court at the time, would Justice Barrett have been?

 

I offer the Kim Davis case as one example, not a template. It would be dangerously premature to assume that any of the other conservative justices will prove a reliable ally of what I take to be the chief justice’s effort to steer the court away from the edge of a right-wing cliff.

 

One case in point reached the court in late spring, a challenge to a government order limiting attendance at religious services to prevent the spread of the coronavirus. In this case from California, the first of several, four conservative justices voted to block Gov. Gavin Newsom’s order.

 

While they lacked the necessary fifth vote — Justice Barrett was not yet on the court — Justice Kavanaugh wrote an opinion explaining his view that the order amounted to unjustified discrimination against religion. His opinion impelled Chief Justice Roberts to explain, in support of letting the governor’s order stand, that he didn’t plan to have the Supreme Court become the country’s public-health authority of last resort. A case that shouldn’t have been polarizing provided a disquieting display of polarization.

 

Then came the flood of election cases seeking the court’s intervention in disputes about extensions of time for ballot-counting and other accommodations because of the pandemic. In cases from North Carolina and Pennsylvania, Justice Kavanaugh proved to be the chief justice’s ally; only Justices Thomas, Alito and Gorsuch voted to take up the Republicans’ cause and block the accommodations. In a case from Wisconsin, however, all five conservative justices voted to deny a Democratic request to resurrect an extended deadline that a federal appeals court had blocked, leaving Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor in dissent.

 

But the five were far from united. Chief Justice Roberts wrote a one-paragraph explanation for his vote in this and, by implication, the other cases. He was willing to defer to state courts and state election agencies, he said, but not to interventions by federal courts.

 

Justice Kavanaugh went much further, with an 18-page opinion that left election law experts scratching their heads over its claim of expansive federal court power to second-guess the way state courts handle their own state’s election disputes. In making his argument, Justice Kavanaugh became the first justice to make liberal use of Bush v. Gore, the case that decided the 2000 presidential election by blocking the Florida Supreme Court’s recount order while George W. Bush maintained a microscopic margin over Al Gore.

 

So now there are six. Will the fractious five become a calmer, more unified six? Assuming the answer is no, where does the new court find John Roberts at the start of his 16th term as chief justice? Ruling from the center in the term just past, he enjoyed his most consequential year ever; with four justices to his right and four to his left, both factions needed him, and he was able to fashion the term largely in his own image. With John Roberts no longer the essential justice, it will be fascinating to see, and highly significant for the country, whether he remains at least a relevant one.

 

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.