Supreme Court

Is There an RBA (Roberts-Breyer-Alito) Axis on SCOTUS?

These three justices all share a pragmatic streak and they stuck together in three of four decisions decided today.

|The Volokh Conspiracy |

Today, the Supreme Court issued four decisions in argued cases. All four case split the justices, as is common for this point in the Supreme Court term. Most of the unanimous cases are released earlier as there is (generally) less back-and-forth among the justices over the opinions.

Today's decisions were particularly interesting in that they split the Court in some unusual ways. These opinions suggest the potential emergence of a pragmatist bloc on the Court, and perhaps provided hints at the Court's direction going forward.

Perhaps the most interesting split occurred in Virginia Uranium, Inc. v. Warren, in which a 6-3 Court rejected the argument that the Atomic Energy Act preempts Virginia's prohibition of uranium mining within the state. Although a clear majority of the Court found no preemption, no opinion commanded a majority—or even plurality—of the justices. Indeed, the Court split 3-3-3, rejected a position favored by the business community, and suggested broad preemption claims may face greater Court skepticism going forward.

Justice Gorsuch announced the opinion of the Court, and authored an opinion joined by Justices Thomas and Kavanaugh, finding no preemption. Justice Ginsburg wrote an opinion concurring in the judgment, joined by Justices Kagan and Sotomayor. Although these two opinions reached the same result, they differed starkly in methodology. Justice Gorsuch focused on the statutory text and explicitly rejected relying upon efforts to divine legislative purpose (beyond what's in the text) to answer the preemption question. This approach could make it difficult for business groups to advance claims of field preemption going forward.

While agreeing with the result, it's no surprise that Justices Ginsburg, Kagan, and Sotomayor did not wish to sign on to Justice Gorsuch's opinion, as all three are quite amenable to efforts to divine legislative purpose. Chief Justice Roberts dissented, joined by Justices Alito and Breyer—a trio that stuck together in three of the four cases decided today, perhaps suggesting the emergence of a pragmatic bloc on the Court that eschews formalist analyses. Time will tell.

Virginia House of Delegates v. Bethune-Hill produced another surprising line-up. Justice Ginsburg wrote the majority opinion, concluding the Virginia House of Delegates lacked standing to challenge a lower court opinion concluding Virginia House districts were unconstituitonally gerrymandered along racial lines. Justice Ginsburg was joined by Justices Sotomayor, Kagan, Thomas and Gorsuch. Justice Alito authored a dissent, joined by the Chief Justice and Justices Breyer and Kavanaugh.

The 5-4 Bethune-Hill split is particularly interesting both because it cuts across traditional right-left lines and because several justices adopted a position at odds with their usual approach to standing cases. Justice Ginsburg, like the other liberal justices, is generally quite generous when it comes to standing, and yet she authored the majority. Chief Justice Roberts, on the other hand, is among the most stingy about finding standing, and he dissented. Justices Gorsuch, Thomas, and Breyer, on the other hand, are about where you'd expect them in a standing case.

A third interesting (if somewhat predictable) split occurred in Gamble v. United States, in which the Court, 7-2, refused the invitation to reconsider the dual-sovereignty doctrine, under which state and federal prosecutions for the same offense do not violate the constitutional prohibition on double jeopardy. This was a win for stare decisis, if a loss for criminal defendants. Justice Alito wrote the Court's opinion for the seven-justice majority. Justice Thomas concurred. Justices Ginsburg and Gorsuch each authored dissents.

The least surprising line-up of the day came in Manhattan Community Access Corp. v. Halleck, in which the Court split 5-4 along traditional right-left lines. Justice Kavanaugh wrote for the conservative majority, concluding that the Manhattan Neighborhood Network is not a state actor subject to First Amendment constraints. Justice Sotomayor dissented, joined by the Court's three other liberals.

Although this right-left division is not particularly surprising, it is interesting to see Justice Kavanaugh writing an opinion rejecting a First Amendment claim, as Justice Kennedy was the Court's most speech-protective justice on the Court. This is not to say Justice Kennedy would have disagreed with Justice Kavanaugh's conclusion, however, as this case concerned what entities are constrained by the First Amendment, not the scope of such protections, and Justice Kennedy might also have been sensitive to the broadcaster's own First Amendment interests.)

The Court is expected to release more opinions on Thursday.

NEXT: Harvard University Cancels Kyle Kashuv

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  1. ” The 5-4 Bethune-Hill split is particularly interesting both because it cuts across traditional right-left lines and because several justices adopted a position at odds with their usual approach to standing cases. Justice Ginsburg, like the other liberal justices, is generally quite generous when it comes to standing, and yet she authored the majority. ”

    Nothing that surprising about this, when you consider that the Virginia house was asserting standing to challenge a court ruling favorable to Democrats. Ginsberg, Sotomayor, and Kagan’s votes were just as you’d expect in light of that.

    1. Decrying those results oriented liberals while ignoring both the liberals on the other side and the conservatives that seemingly switched from their usual tendencies is some pretty nakedly partisan thinking.

      1. The conservatives switched for principled reasons, Sarcastro. Surely you understand that.

        Breyer must have misunderstood the implications of the case, or he would have voted with the majority.

        There, I wrote Brett’s comment for him.

        1. Heh. It’s funny cuz it’s true.

      2. Lets see

        1. 3 antibusiness conservatives vs 1 probusiness lib
        2. 2 conservatives in favor of democrats vs 1 liberal in favor of republicans.
        3. Yeah, its criminal justice but I don’t really think this particular area is much of a left/right thing nowadays.

        I guess, its a bit too little to draw conclusions about either wing of the Court but Ginsborg in particular certainly seems to be a slave to ideology above all else.

        1. So all switches were in bad faith, but conservatives win because more liberals switched?
          THAT’S your argument that your side is principled?

    2. The standing argument here is really interesting though.

      For the sake of argument, let’s assume the court is right on the first point of standing, the House can’t continue litigating if the AG chooses not to. It’s the second point which is interesting. The House has no standing on its own, even if the law is demonstratably altering the districts for the House. It’s “not an injury”.

      What does this begin to imply for the partisan gerrymandering cases coming up. Remember, the first case (in Wisconsin) got sent back for lack of standing. Are the future ones going to be sent back for lack of standing? I mean, if you’re represented by a Republican or Democrat, you’re still represented, so it’s not an injury. Right?

      1. Oh, I love me some justiciability. And yeah, when it comes to voting rights justiciability is a mess of partisan backing-and-forthing. Has been since Allen v. Wright.

        I dunno that I see as direct an analogy between legislative members votes and members of the polity’s votes as you do.

        1. Since the legislative members are also members of the polity….

          1. You’re making my point – members get a justiciable EPC right to vote in one person one vote elections just like everyone else.

            1. So, you do see the analogy then.

              1. I see you are making an anlogy;
                I am unconvinced that legislative votes and electoral votes are analogous.

  2. Ginsberg et al ruling in favor of Democrats. What a Shock!/s
    A bit early in the day hitting the bottle Professor?

    1. et al doing a lot of work here.

  3. A far more disappointing case decided today is the Gamble/dual Sovereignty case and double jeopardy.

    The BoR is enforceble against the federal government (Barron v Baltimore). The dual sovereign concept is simply made up to circumvent the plain meaning of 5A

    1. Now… assuming you are 100% correct and the only reason dual sovereignty doctrine exists is to circumvent the 5A… so what? Why is that a problem for anyone but a criminal? You need an answer to that question.

      1. Pfft. Because after you’ve been acquitted once, you’re not supposed to be able to be declared a criminal for that act. The whole point of double jeopardy is to keep people from being tried until a jury “gets it right”, and then stopping.

        1. But Brett they’re a criminal so who cares. ¯\_(ツ)_/¯

          Also why should there be any privacy, if you have nothing to hide?

          1. Well, the standard here is “answers James Pollock knows”, so there’s a reason for pretty much any government overreach.

            1. The ad-hom attack is what people use for answers when they don’t have any.

              1. You probably shouldn’t use that line of argument, given your other responses at 12:14 AM, 12:18 AM, and so on.

                1. Mere namecalling doesn’t get to be ad hominem. It doesn’t even purport to be an argument.

                  1. Particularly when it’s a response to something that isn’t an argument.

                  2. I was being generous.

                    1. … if somewhat stupid. (if this offends you, feel free to substitute “imprecise” instead.)

      2. I….can’t tell if your joking or not.

        1. Grow some more brain cells.

      3. In an unusual alignment, I’m voting with Joe, Brett, and m_k on this one.

        1. Joining the miss-the-point club is nothing to brag about.

          1. Not bragging.

            Just stating my opinion.

            1. Me too. You missed the point entirely.

      4. “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”39 A second “vitally important interest[ ]” embodied in the Double Jeopardy Clause “is the preservation of ‘the finality of judgments.’ ”40

        The concept of double jeopardy goes far back in history, but its development was uneven and its meaning has varied. The English development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution.41 In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction. The rule’s elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches.42 Madison’s version of the guarantee as introduced in the House of Representatives read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.”43 Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike “or trial” from the clause failed.44 As approved by the Senate, however, and accepted by the House for referral to the states, the present language of the clause was inserted.45

        https://www.law.cornell.edu/constitution-conan/amendment-5/double-jeopardy

      5. And why is ubiquitous wire-tapping a problem for anyone but a criminal? Why is stop-and-frisk a problem for anyone but a criminal? We need answers to these questions, because somehow we don’t know of any.

        1. And even more questions… why should I care that you got wiretapped? Why is stop-and-frisk a problem for me, a white guy? If your argument doesn’t give me a reason to care, you don’t get to complain if I don’t care.

      6. Double jeopardy is part of the large package of rules trying to stop the powerful from using the levers of government investigation and prosecution to harm political enemies.

        In light of this, NY’s behavior is doubly shameful as they are using this form of double jeopardy (1), and are doing it to (2) harm a political enemy, both of which are disusting violations of this basic principle, designed to forestall tyranny by denying this tool to wanabe dictators.

        Of course, Donald “Lock her up!” Trump is no principled constitutionalist in this respect.

      7. Why is that a problem for anyone but a criminal? You need an answer to that question.

        On that standard, you can do away with about half of the Bill of Rights, which deal with procedural issues in criminal cases.

        1. You also join the miss-the-point club.

          If you can’t explain why a rule exists, why have that rule? 100% of the rights in the BoR have a purpose. The people who put them in the Constitution did so intentionally, because they were familiar with the offenses of the Crown. But a lot of people today don’t have that familiarity with the offenses of the Crown, so it isn’t a safe assumption that they already know what the purpose of this right or that rule is.
          When you ask them to just take your word for it that we have to preserve this rule or that, you turn it from a reasoned debate into an argument of faith.

          1. The founders were well aware, at a time when the process might have included extradition to England for trial and being taken away from friends and family for months or years even if ultimately found innocent, that the process of being prosecuted is part of the punishment. The 5A is intended to mitigate the effectiveness of political prosecutions as a continual form of punishment.

            Today, with the continuous news cycle, the damage to the accused’s reputation along with the perpetual drain of pitting one’s personal resources against the limitless resources of the State, the situation is not much improved. The process is still part of the punishment and should be limited as much as possible to minimize the impact on an innocent party.

          2. With so many people missing your point (assuming for the sake of argument that you have one). Perhaps it’s time to stop and consider if the problem is on your end.

            1. In future, if you can’t be bothered to actually read what I wrote, maybe don’t bother commenting on it, either?

      8. James Pollock: “Why is that a problem for anyone but a criminal? ”

        Really? You’re sticking with that? Ignoring a person whom the anointed are out to get but who slipped past the first time because of — say — an uncowed jury or a really skilled defense attorney?

        I admit to sometimes being happy with the outcome of the second bite at the apple. I’m never happy that the apple is kept within biting distance.

        1. “Really? You’re sticking with that?”

          No. I’m pointing out that if you don’t provide a reason why X is bad (whatever X is) in your argument, you open yourself up to being asked why someone should care what your opinion of X might be.

      9. Pretending that you were engaging in socratic questioning rather than just bad faith trolling, it’s a problem because prosecution itself is costly, regardless of whether one is innocent or guilty, convicted or acquitted. An innocent person who is acquitted by a jury is protected by the double jeopardy rule.

        1. “An innocent person who is acquitted by a jury is protected by the double jeopardy rule.”

          So are guilty persons who are acquitted. Is there no room in your philosophy to question whether this should be so?
          If a person is falsely convicted, and then new evidence comes to light, they can ask for, and sometimes get, a new trial. Why not the same for persons falsely acquitted?

          1. “So are guilty persons who are acquitted. Is there no room in your philosophy to question whether this should be so?”

            No

            “If a person is falsely convicted, and then new evidence comes to light, they can ask for, and sometimes get, a new trial. Why not the same for persons falsely acquitted?”

            Because the resources available to the prosecution are far greater than those available to the defense. For the defendant to get a new trial on the bases of newly discovered evidence, they have to justify to the court why they couldn’t have found this evidence before/during the original trial. Lack of effort isn’t a valid excuse.

            The state/prosecution determines when to go to trial. There is never a valid excuse that the state couldn’t have discovered some piece of evidence before going to trial.

            1. Now that you’re on record preferring that guilty people walk free, why hold trials at all? Just let all the guilty people walk free.

              ” For the defendant to get a new trial on the bases of newly discovered evidence, they have to justify to the court why they couldn’t have found this evidence before/during the original trial.”

              OK. And that doesn’t work the other way because….

              “The state/prosecution determines when to go to trial.”

              …ahem… right to a speedy trial… ahem… What? Oh, nothing.

    2. So an enterprising local DA can preempt Federal Law by doing a quickie throw-away trial that protects all the charged conduct from the Feds under double jeopardy? How would such a scheme square with the supremacy clause, unless every DA had to submit every single charge to the local US Attorney’s office to decide whether they want to preempt it?

      [ Of course, the USA would decline to preempt about 99.99% the time, thus making this an exceedingly wasteful scheme. ]

      1. Well, maybe. Of course, your hypothetical local DA would have to bring in at least one judge and enough of the jury to guarantee the result. By the time you have a conspiracy that large, you’ve got a pretty easy slam-dunk by the Feds for obstruction of justice. Yes, the enterprising DA might be able to get one “customer” off with this technique. I’m not seeing much risk for more than one, though.

        1. ” Of course, your hypothetical local DA would have to bring in at least one judge and enough of the jury to guarantee the result.”

          Or just bungle the presentation of the prosecution so much that the defense wins.
          The reason dual-sovereignty rose to public notice was because the feds started going after people who did racially-motivated crimes, who never seemed to get convicted in state courts. They didn’t want to embarrass the state courts, so they didn’t argue that the fixed state court trials amounted to not actually putting the defendant in jeopardy, so they used dual sovereignty instead.

        2. Not that I’m in favor of the plan at all, but all the prosecution would have to do is just not produce evidence on one or two key points so that acquittal is assured. Acquittal is a pretty easy result to guarantee if you’re the prosecution, considering that’s the default unless you do the work to overcome it.

        3. But the DA doesn’t have to actually lose the trial: jeopardy still attaches if the defendant is convicted and given a lenient sentence. (This is what happened in the Gamble case.) It also attaches as soon as the jury is sworn, so if the DA were to simply dismiss the charges at that point (as they could in most jurisdictions) that would also be the end of it.

          1. “But the DA doesn’t have to actually lose the trial”

            I think “losing the trial” is shorthand for all the ways a DA’s prosecution can end with an acquittal, even if there is, strictly speaking, no actual trial.

      2. Eliminating dual sovereignty would have created significant administrative challenges.

        The easiest way to deal with it would be to grant federal courts authority to order parallel state criminal proceedings stayed once an indictment is issued. If the feds want to get someone, indict him, and then proceed that way. If the feds snooze and wait until a state trial is over, then too bad.

        But we will never know, as dual sovereignty remains the law.

        1. The problem is, how do you know the state prosecution is a sham until you can see it being shammy?

          Example:
          Publicly-available information such as citizens with cell-phone video recordings makes it dead obvious that police are misbehaving. So the prosecutor prosecutes some police whose misbehavior is already public knowledge. BUT, wait. The prosecutor is dependent on the police for all other prosecutions; they can’t afford to alienate the boys in blue. So they “prosecute” the misbehaving cops in such a way that the other cops don’t get pissed off.
          Yes, the feds might see this conflict from the outset and decide to take over the prosecution. They don’t have to work with local cops day-to-day, so they can actually pursue the bad ones with vigor. But they’re also busy with their own work, prosecuting criminals caught by federal law enforcement, so demanding that they also be looking over the shoulder of local prosecutors (how many are there in a federal district?) sounds like it’s unlikely to be effective.

      3. So an enterprising local DA can preempt Federal Law by doing a quickie throw-away trial that protects all the charged conduct from the Feds under double jeopardy?

        Only if federal law is intruding in an area that properly should belong to the state anyway. (Like the Gamble case, for example.) If you limit federal crimes to the handful that the constitution actually supports, then the dual sovereign issue becomes almost moot.

        1. “Only if federal law is intruding in an area that properly should belong to the state anyway.”

          This isn’t true if you accept that there are times that state and federal law overlap, and the overlap is not properly “intrusion”. For example, a crime might be a state crime because of what was done, and a federal crime because of who it was done to. Robbing a postal carrier, say, or murdering a federal judge.

  4. “Justice Sotomayor dissented, joined by the Court’s four liberals.”

    I suspect you meant “joined by the Court’s other liberals.” She wouldn’t have to write a dissent if she was joined by four justices.

    1. I assumed it was just a typo, and was was intended was, “…joined by the Court’s other three liberals.”

      1. speaking of typos, “was was intended was…”
        WTF??????

    2. Ack. You’re right. I’ll fix.

  5. 1. I’m really not a fan of this “change government, don’t appeal” tactic. It’s become increasingly common, where there’s a court case, one that’s ongoing for years, part of the government changes, and suddenly they decide “yeah, we’re not gonna defend this now, we get our desired political outcome.” It basically shortcuts the political system and the court system. Either a speedy trial, or a designated attorney for the life of the case is really needed.

    2. The standing argument is interesting, and perhaps will forecast the results of the future gerrymandering cases (which also may have a standing problem).

  6. I am not surprised about the ruling in Gamble, considering the long standing practice of the dual sovereignty doctrine. I agree with the Court in Brown Shoe Co. v. United States that we should not ignore the implications of this exercise of judicial authority assumed to be proper for so long. 370 U.S. 294, 307 (1962) (even though Brown Shoe Co. was not quoted or cited in Gamble.

  7. The idea that the Virginia house doesn’t have standing to appeal a lessening of its own power is a pathetic joke. Shame on these losers.

    1. It doesn’t lessen the House’s power. It doesn’t affect the House’s power at all. All it affects is which people are members of the House.

      1. Recall that some people develop a loyalty to party over loyalty to country. Then recall that what’s at issue is control of the state government by one party, specifically. So there is a threat here, even if it isn’t the specific one the troll stated.

  8. […] the Supreme Court issued four more opinions, with more expected tomorrow and next week. As with Monday’s opinions, today’s decisions featured some interesting line-ups and lots of clues about how existing […]

  9. […] the Supreme Court issued four more opinions, with more expected tomorrow and next week. As with Monday’s opinions, today’s decisions featured some interesting line-ups and lots of clues about how existing […]

  10. […] the Supreme Court issued four more opinions, with more expected tomorrow and next week. As with Monday’s opinions, today’s decisions featured some interesting line-ups and lots of clues about how existing […]

  11. […] the Supreme Court issued four more opinions, with more expected tomorrow and next week. As with Monday’s opinions, today’s decisions featured some interesting line-ups and lots of clues about how existing […]

  12. […] the Supreme Court issued four more opinions, with more expected tomorrow and next week. As with Monday’s opinions, today’s decisions featured some interesting line-ups and lots of clues about how existing […]

  13. […] Justices Kagan and Gorsuch agreed across-the-board today, there was no such consensus among Justices Roberts, Alito and Breyer. Whereas the Chief Justice and Justice Breyer agreed in three of four cases decided each of last […]

  14. […] Justices Kagan and Gorsuch agreed across-the-board today, there was no such consensus among Justices Roberts, Alito and Breyer. Whereas the Chief Justice and Justice Breyer agreed in three of four cases decided each of last […]

  15. […] Justices Kagan and Gorsuch agreed across-the-board today, there was no such consensus among Justices Roberts, Alito and Breyer. Whereas the Chief Justice and Justice Breyer agreed in three of four cases decided each of last […]

  16. […] Justices Kagan and Gorsuch agreed across-the-board today, there was no such consensus among Justices Roberts, Alito and Breyer. Whereas the Chief Justice and Justice Breyer agreed in three of four cases decided each of last […]

  17. […] Justices Kagan and Gorsuch agreed across-the-board today, there was no such consensus among Justices Roberts, Alito and Breyer. Whereas the Chief Justice and Justice Breyer agreed in three of four cases decided each of last […]

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