The Alito Court within the Roberts Court part 1 - We are in Two Overlapping Eras of Supreme Court Jurisprudence
There's deeply frustrating, obviously biased SCOTUS, and then there's completely bonkers, nakedly clannish SCOTUS
This week at SCOTUS, eh?
I spent a good chunk of yesterday reading an excellent post1 from Steve Vladeck’s One First about the argument session on EMTALA’s relationship to the Idaho abortion ban. A fair bit of that post expressed Professor Vladeck’s shock at the arguments being entertained by Justices Gorsuch, Thomas, and especially Alito. He expressed a sense that this behavior by the justices was somehow simultaneously a complete shock and the obvious, expected action from the current Court. That in turn brought up some similar thoughts I’d had in the past about how you can really describe the post-Scalia, post-Ginsburg Supreme Court in terms of the conservative-leaning but fundamentally institutionalist Roberts Court gradually failing to contain an openly biased, dismissively outcome-driven Alito Court that is taking shape within it. I started writing it up, but as usual the post ran long and got pretty involved, and I shelved it for the day so I could take care of non-blog business.
And then I went through all the coverage of the Trump v United States argument session.
So this is now a multipart series on the evolution of the Court since I’ve had the capacity to observe it, from the late Bush administration through the Obama/Trump era and into the further future. My fundamental thesis is that we are in what will ultimately be regarded as an intermediate period between major eras of the Supreme Court and the federal judiciary, as it transitions from a time defined by the presence of a back-and-forth between politically shaded factions within the context of a judiciary that viewed itself as fundamentally apolitical into a period where the judiciary has become much more explicitly political. That process is in many ways much more advanced in state courts, but the mechanisms of change and its structure are different in the federal system in ways that make it much less predictable and more driven by the specific people occupying each judicial office.
This first piece will be about the prevailing norms of the previous era, both on the Court and in how its composition is changed. It covers these topics in a general sense, with the goal of expressing why the more open, aggressively cynical behavior from Samuel Alito and his faction2 represents a genuine step up in the intensity of a noteworthy pre-existing trend. Next will come an analysis of the Supreme Court’s internal dynamics, the character of the current justices, and how those dynamics transform that character into the current factions and overall temperament of the Court. Finally, I will sum up with a discussion of the context in which the Alito faction presumes itself to be, towards which it is driving the rest of us, and the ways in which many people who are rightly alarmed by this turn and wish to correct it nevertheless miss the mark on what the underlying problem is and what sort of reform would prevent it from re-emerging. We shall see if and to what extent I end up touching on the deeper principles of structural reform that underlie my SCOTUS-specific thoughts.
Let’s begin with a quote from Professor Vladeck about the EMTALA argument:
But the extent to which at least three justices were willing to go on Wednesday to throw basic principles of federalism, equity, and common sense to the wind in the interest of allowing states to ban abortions even in cases in which they are medically necessary to stabilize a pregnant woman’s emergency medical condition was, frankly, jaw-dropping. I suspect that some of the folks reading this will not be surprised by those efforts. Perhaps I’m naïve, but I was—by their shamelessness, in addition to their substance.
The shamelessness here is fundamentally the same as the shamelessness of Dobbs itself. I think it’s more than fair to have been surprised by it at that time, and understandable to still be a little shocked when it returns to prominence.
In the period between Dobbs and the Texas bounty case reaching the Supreme Court and the Dobbs draft leaking, there were very serious concerns that one or both would be used as a vehicle to enable effective abortion bans without explicitly overruling Roe, given how thoroughly the composition of the Court had been readjusted in the Trump years and the explicitly partisan valence of that readjustment. This would have been a notable escalation in the pattern of undermining Roe and Casey while pretending to respect them, but fundamentally a continuation of it. Dobbs effectively declared that, because its author and his allies didn’t like the context of the preceding fifty years of legal development, they were going to declare that none of it counted and we would rerun all those arguments to get something that better fit their idea of a valid process (and, incidentally, a much greater chance for them to get their desired outcomes).
In other words, while the outcome of Dobbs was basically within the reasonable spread of possible outcomes given the writ granted, the approach to judicial process represented by Alito’s opinion was a complete shock to all but the most simplistically cynical conflict theorists.3 Based on the way the Court has handled the relevant cases and the arguments we have seen, there are very valid reasons to worry that we will see similar decisisionmaking in the EMTALA case, Trump v United States, and cases involving healthcare for transgender individuals. One can also argue that this background problem slanted the Court’s approach to the ballot disqualification case, and that there is cause for concern about its potential effect on the mifepristone case.
Before we can really get into what changes are occurring, much less how and why, though, we need to step back and look at where we started, and discuss some of the changes that have happened around - rather than on - the Court itself.
Supreme Court appointments have had a partisan valence for more or less my entire lifetime, going back at least to the failed Bork nomination, and arguably as far as the Fortas impeachment threat.4 Prior to the death of Antonin Scalia, though, there had been an effort to keep that partisanship contained to the subtext of appointment debates, an aspiration towards removing it entirely, and generally a hope that once on the Court, the justices at least would locate their most central loyalty with the principles they had espoused as nominees, rather than the motivations of those who did the nominating. This, together with the finely balanced ideological makeup of the Court, had a genuine effect in terms of the expectations for the justices. Add in the strong character of the most politically salient justices, and it is easy to see why there was a sense that the Court was genuinely, as an institution, a little bit outside the partisan back-and-forth that had been escalating in the political branches as far back as the Clinton administration.
As I was growing up in the Bush and Obama years, and then on into my adulthood, political readings of the Court defined it in terms of two wing factions connected by a bridge. We had the “liberal” wing, with Justice Ginsburg as its most prominent exemplar, and the “conservative” wing driven by Justice Scalia. Between them sat Kennedy, who could be relied upon to produce some kind of convoluted multifactor test that certainly seemed to indicate that whatever outcome he’d decided to back was a reasonable compromise. In that context, it was possible to view a case like Bush v Gore as a genuine outlier prompted by what amounted to a black swan event - a more or less literally tied election.5 It was colored by partisanship in that it was a 5-4 decision that likely mirrored the justices’ votes as private citizens in the election whose winner they were declaring, but in a way that could be read as a product of unconscious bias in an unusual circumstance.
And then in 2010, Senate Majority Leader Mitch McConnell decided that his party’s mandate was to make sure President Barack Obama would have no legacy. The next six years of divided government led to a pattern of obstructive dysfunction in Congress, and intense scrutiny of 5-4 Supreme Court decisions, especially those with an obvious political valence, like Obergefell, Hobby Lobby, and the individual mandate case. Treating the Supreme Court as having a majority and minority party that acted in competition, rather than in concert, and whose strength was changed by elections as mediated through the Presidency and the Senate, became the norm.
When Justice Scalia died in February of 2016, McConnell, always judicially-minded, used the fact that many observers read his seat as “belonging” to the Republican party as an opportunity to argue that the succession should be decided voters in the oncoming election, rather than by the President and Senate, which after all could be subject to some amount of change in a short while. Perhaps if Hillary Clinton had won the election, the damage done by this decision would have been limitted to a year spent with a crippled Court. Alas, it was not to be. Over the Trump years, the clear, explicit partisanship of this “seat stealing” fight, both McConnell’s choice to use partisan balancing as justification for his behavior and the fuzziness from some Democrats as to why, exactly, he had been wrong to engage in it, embedded the partisan reading of the Court deeper and deeper into perceptions of the institution. The death of Justice Ginsburg in September of 2020, and the choice to fill her seat approximately two weeks before it was determined that control of both the Presidency and the Senate would in fact change, simply sealed that impression.
In order to understand the actions of the Court since McConnell so firmly stamped it as a partisan football Republicans had successfully kept control of, we will need to look deeper, though, at the nine particular people who make up this institution, and how their attitudes interact with this public perception. That, as I said at the top, is a tale that will be held until this series continues.
The more engagement I get on this blog and on this site, the more it encourages me to write here. Subscriptions are a way for me to share thoughts with you, but comments are a way for you to get me thinking in the first place.6
Permit me an off-topic aside about substack. You may have noticed that Professor Vladeck’s post is paywalled, and that he offers one free paywalled article via a substack tool. I am not a paid subscriber of Professor Vladeck, but I do think highly enough of him that I have featured his blog in my recommended section since I put it together, and I am always eager to read his commentary. I am much less eager to install the substack app. Substack, as far as I am concerned, is a website, and I will interact with it exclusively as such. Alas! Substack is very sad about this, so their utility for offering limitted use access to paid content only functions for users of the app. I was able to read the article in question because, when I raised this issue with the Professor, he was kind enough to give me an access link directly. I’ve chosen to link his piece in the regular manner, rather than publish the key he gave to me specifically, out of respect for him as the author. I have less than no respect for substack as an author; as it happens I have muted all of their in-house publications on Notes. For substack to usurp the business relationships of its client-authors with their user-customers in this manner is, in my view, an incredibly offensive example of the sort of monopoly-curious practice that has unfortunately become industry standard for any technology company that considers itself to be a “platform”, from Apple to Facebook (no Mark, I don’t care about your game), or, like Apple or EA, has ambitions towards that status. I don’t know of any similar behavior around Valve’s steam, but if it ever does happen I will be quite sad. It would be a tragedy for the sort of console exclusivity problems that were really only ended by consoles themselves becoming irrelevant to spread from video games to every other medium of expression, and I hope we as individuals acting in the market can continue to stave off that eventuality.
Alito’s “faction” is an amorphous group with highly variable membership. In the current Court, Thomas and Gorsuch are usually part of it but sometimes have their own priorities; Kavenaugh and Barrett are usually fellow-travellers of some sort but can act more like faction members in some cases, and Roberts is almost always more of a fellow-traveller than a true member of the faction.
Remind me at some point. I am fucking coming for conflict theory, and even moreso for conflict praxis.
To be clear, I’m using qualifiers here to acknowledge the limits of my own understanding, not to claim that the facts are fundamentally unknowable. If I’d been following the Supreme Court’s development in real time since the Wilson administration, I’d probably have a stronger opinion; query whether and to what extent it would be a different opinion.
The electoral college system of aggregating votes makes ties in the presidential race vastly more likely. Consider that in the time since 2000, we’ve had three near-tied elections for Senate seats (Minnesota in 2008, and both Georgia seats in 2020), and then consider that, across the country, we hold more than 60 times as many elections for Senate seats as opposed to Presidential terms.
Unless you’re a random neonazi crank or a statusmongering tweet farmer. Racist screeds and self-congradulatory applause lines are to thinking what moldy, half-finished breadcrusts are to eating.