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Volokh Conspiracy

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.


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.