The Volokh Conspiracy

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Supreme Court

A New Five-Justice Block on the Supreme Court?

In two decisions today, Chief Justice Roberts and Justice Kavanaugh aligned with the Court's liberals.


The Supreme Court issued two significant decisions today. In both decisions, the Chief Justice and Justice Kavanagh aligned fully with the Court's three liberal justices, while disagreeing (at least in part) with Justices Thomas, Alito, and Gorsuch. Justice Barrett did not participate in either decision as they were argued before she was confirmed to the Court.

The first decision came in Ford Motor Co. v. Montana Eighth Judicial District, a personal jurisdiction case with significant implications for civil litigation. Justice Kagan wrote for the Court, joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kavanaugh. Justices Alito and Gorsuch (joined by Thomas) filed opinions concurring in the judgment. Interesting to note, despite the Roberts Court's "pro-business" reputation, not a single justice adopted the position urged by Ford Motor Co., the Chamber of Commerce, or the other business groups that filed in the case. (It's almost as if the analyses in my recent Senate testimony and Business and the Roberts Court book are a better way of understanding the Court than simplistic labels.)

The second decision came in Torres v. Madrid, which concerned when the application of force constitutes a "seizure" for Fourth Amendment purposes. In Torres, Chief Justice Roberts wrote the opinion for the Court, joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Gorsuch dissented, joined by Justices Thomas and Alito.

While one cannot draw any broad conclusions about the Court from just two decisions, it is interesting that, despite the distinct subject matter in each case, the Chief Justice and Justice Kavanaugh aligned fully with the Court's liberal justices, separating from the Court's other conservatives in their analysis, if not also the result. It will be interesting to see whether this alignment will recur in subsequent cases.

There is no word yet as to whether we can expect additional opinions next week.