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.

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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.

NEXT: What will the SG do in National Coalition for Men v. Selective Service System?

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  1. By “liberals” you mean “moderates”. There hasn’t been a liberal on that court in 30 years.

    1. just because they aren’t as freewheeling as justice douglas doesn’t mean they aren’t’ liberals.

      1. Some people seem to think anyone to the left of Atilla the Hun is a leftist. That’s a function of how far right our politics skews, and not a function of them actually being liberal.

        1. Some people seem to think

          Don’t knock it ’til you’ve tried it.

          1. You again; I thought after you got your head handed to you in our last conversation that you’d gone away. Well, welcome back. How was the funny farm?

        2. Some people seem to think anyone to the right of Stalin is extreme right wing.

          1. And those people are wrong too.

    2. By your definition, there never was.
      Call leftists what they are — leftists. Rush Limbough was a liberal.

    3. I love the delusional leftwing narrative that America is more conservative than its ever been before in history. Gee I wonder how many 19th century justices would come out for taxpayer funded transgender surgery for convicts and children or same sex marriage or critical race theory.

      1. “how many 19th century justices”

        Don’t have to go back that far, try 10 years ago.

      2. ” I love the delusional leftwing narrative that America is more conservative than its ever been before in history. ”

        America continues to become less conservative. Nearly all of the liberal-libertarian mainstream recognizes (and applauds) this. Conservatives have been getting stomped in the culture war for so long as anyone reading this has been alive, with no end in sight.

        1. This fixed belief you have is caused by the propaganda in the biased media. It is not caused by conversations with real Americans.

      3. Actually, Amos, what you’re seeing is an optical illusion created by anti-democratic institutions that allow conservatives far more power than their numbers would indicate. The country looks far more conservative than it is because South Dakota gets to cancel out both Los Angeles and San Francisco in the Senate.

        1. Until LA and SF become states that’s an entirely pointless observation.

          1. You might be surprised at how conservative the vast majority of African Americans really are. Their political leaders are super-woke progressives. Many of their political leaders are also hopelessly corrupt (and count on the Democratic party machine to keep them out of trouble).

            It will become a very bad time for the Democratic party when African Americans realize that the politicians representing them are not looking out for them.

    4. “There hasn’t been a liberal on that court in 30 years.”

      LOL Ruthie is barely cold.

      The Wise Latina is liberal even by Warren Court standards.

      1. I’m with Bob on this one.

        It’s impossible to really measure how liberal justices are as compared to the past, but we’ve certainly seen, e.g., very liberal results on gay and trans rights cases, and the repealing of non-unanimous juries, for instance. And those are, by historical standards, very liberal decisions.

        1. Would have been upheld by Powell, Souter, White. These are moderate Republican positions. Eisenhower and would have gone along.

          1. and Nixon (circa 1971)

          2. Powell wrote Bowers v Hardwick.

            1. Regretted it too.

    5. What would a liberal justice look like? What specific results would such a justice reach?

      1. Hmmm…I had thought he’d make an attempt at definition.

        1. We’ve have plenty in the past.

          Patrick Leahy, for example, if placed on the Court 20 years ago.

          Or AOC in ten years.

          1. What would Justices Leahy and Cortez do to make the Court’s jurisprudence less…moderate?

          2. Sure, AOC got good training as a bartender

            1. Dammit we only respect inherited wealth in these courts!

              1. No amount of money would make Occasional-Cortex a good choice, ever.

      2. Aside from Douglas and Marshall, Sotomayor is more liberal than any justice since 1935.

        1. Wait…what? You forgetting Justice Brennan? 🙂

  2. Ford’s position – that a plaintiff cannot sue in the state in which he was injured – is an ultra-maximalist one that would have been considered frivolous a few years ago. If adopted, it would have totally upended the vast majority of products liability litigation. That Roberts and Kavanaugh did not go along with it does not refute their lifelong commitments to advancing the interests of business owners and the capitalist class writ large. Roberts is an operator, not a raving lunatic, making him far more effective at advancing a “pro-business” agenda.

    1. And — in 2021 — the “capitalist class” are Democrats & RINOs.

      That’s why I see this — actually both cases — as MAGA victories.

      1. Unfortunately, you are correct that far too many Democrats serve the interests of the capitalist class at the expense of workers and victims of corporate crimes. The lawyer who argued the case for Ford (and has argued many significant cases against corporate liability, including for child slavery), is considered a possible Supreme Court pick for the Biden admin. That itself is a pretty serious indictment of the Dems and their priorities. But to pretend that :MAGA” is somehow opposed to capitalist class interests is beyond delusional. All Trump did was cut taxes for the rich and stack the judiciary with FedSoc-type corporate lawyers.

      2. “That’s why I see this — actually both cases — as MAGA victories.”

        Wonder why most of the most conservative Justices voted the other way then…

        1. They support state/corporate authority.

    2. That is not Ford’s position, and your analysis is shallow and childish.

      That said, the Court’s decision here was correct, IMO. Ford cultivates a nationwide market for its automobiles, which it knows are many times sold across state lines in the secondary market. (Heck, today you can order a used car on-line and have it delivered to the other side of the country.) Nothing unfair about requiring Ford to answer for defective products in that circumstance.

      1. Shallow and childish analysis in the comments section of reason dot com slash volokh? Surely not.

        That was obviously not Ford’s *stated* position, but it would be the result had its position prevailed. More specifically, any manufacturer who sold a product through a distributor or intermediary (i.e. almost all of them) could not be sued in the state where the product caused injury, because there would be no causal connection between the manufacturer’s forum contacts and the resulting injury.

      2. It wasn’t even that — both of those vehicles (year & model) were advertised in both of those states, and Ford sold parts in both of those states.

        It’s not like sneaking Coors beer east back when distribution was limited — Ford wanted their product sold in those states.

      3. Ford’s position was ludicrous and I don’t think the commenter’s description of it was that off at all. There is a reason that all 8 Justices completely rejected Ford’s arguments. Not sure why they even granted cert here but it will be helpful to knock down some overreadings of Bristol Myers in the future.

        1. It looks like even most of the commenters here thought Ford was wrong. This was a fastball down the middle of the plate.

    3. That Roberts and Kavanaugh did not go along with it does not refute their lifelong commitments to advancing the interests of business owners and the capitalist class writ large.

      NONE of the Justices went along with it. Roberts and Kavanaugh joined the majority opinion but no one was buying the BS that Ford was trying to sell. For that reason, I agree that this is hardly a big deal that Roberts and Kavanaugh joined Kagan and the liberals. Alito’s concurrence clearly rejected Ford’s position as well and Gorsuch/Thomas went off on their own little frolics rejecting most of the DP jurisprudence of personal jurisdiction and International Shoe and its progeny. That said, they also clearly rejected Ford’s ridiculous position.

    4. Ford’s position – that a plaintiff cannot sue in the state in which he was injured – is an ultra-maximalist one that would have been considered frivolous a few years ago. If adopted, it would have totally upended the vast majority of products liability litigation.

      That’s not true, because it’s not Ford’s position. Ford’s position was that a plaintiff cannot sue in the state in which he’s injured unless the injury was caused by the defendant’s actions in that state (or unless the defendant is at home in the state). It was clearly a bridge too far for the justices, but it was not crazy. If it were, SCOTUS wouldn’t have taken the case.

  3. I see Torres as a populist/conservative decision — that the Constitution limits the powers of the government. The fact that the left holds similar views doesn’t make it a leftist-only belief.

    1. And I see Ford as a victory for the populists and a defeat for the “chamber of commerce corporatists.”

      A MAGA victory.

      “Ford Motor Company is a global auto company, incorporated in Delaware and headquartered in Michigan.”

      How can a corporate person have its headquarters outside the state of its residence? To enjoy the benefits of Delaware residence, a natural person would have to actually reside in Delaware. While Ford is clearly going to have buildings and employees everywhere, why doesn’t it have to have its “headquarters” (however it wishes to define that) in the state in which it is considered to reside in?

      1. Conservatives yelling populism behind their leader who literally lives in a country club he owns says about all one needs to about where that movement is now.

        1. It’s what Trump did, not how he spends his own money.

          1. Ed,
            I continue to be amazed at your defense of Trump. He did far more than any single person to destroy the Republican party. If this country is moving towards a one-party state like California, we can thank DJT

      2. What’s a “chamber of commerce corporatist”?

        Also, why wouldn’t companies be able to be headquartered outside it’s place of incorporation? You can be born in Michigan, live in Connecticut, work in Massachusetts, and own a vacation house in Florida.

        1. But you can only be a resident of ONE of those states (at a time).

  4. No diff between Scalia and Ginsberg. All the Justices are Ivy indoctrinated, big government biased, lawyer dumbasses. They are the stupidest people in the country. After 2 years in Washington, Barrett will become one of them.

    1. You’re far more optimistic than I am.

    2. She’ll become Ivy indoctrinated? And surely you already think she is a lawyer dumbass?

      And I’m not sure how ruling against the government is big government biased, but you do you.

      1. She will soon become Washington acculturated, and a rent seeking, adherent of big government. I did after a short time there.

        1. Her religious background will act as a drogue anchor.

          1. Scalia was religious. Can’t overcome culture because humans imitate. They need to be moved to the real America.

  5. They are human, and the above is inevitable. No human can regulate himself. They need a Judiciary Act. Move the Court to Wichita. Make the number of Justices even. Prohibit judicial review, a catastrophe. If not, make the Court the size of a legislature. Prohibit anyone who has passed 1L.

    Make it custom to impeach Justices for their decisions, not for any trivial corruption. Impeach them for any serious impairment.

    1. Putting the loon into lunatic!

      1. ACtually, a loon is a species of bird.

        Lunatic comes from the Latin luna, or the moon. (Hence the word lunar.) It was thought that staring at the moon drove one mad, so the word lunatic developed to signify madness.

        1. What do you lawyers think of people who believe in mind reading, in future forecasting of rare events, and that standards of conduct should be set by a fictitious character? Is that OK, in your book? Then, these people impose their beliefs on others at the point of a gun. Shouldn’t such people be captured and incapacitated, because they are so dangerous?

          1. As I’ve explained to you before, “future forecasting” is redundant as a phrase. And commonplace as a concept.

            1. The sun rises on the East. Every day for billion years. Predicting accidents is a supernatural power as is their prevention. In accordance with faith, the Church said God could, not man, as the lawyer dumbass claims. The lawyer is not just a dumbass, but evil. It makes that claim to defraud and to plunder.

              The modern view is that factors come together, like 12. Preventing one prevents the accident. There is no chain of causation, lawyer dumbass, with fraud from the 13th Century..

        2. No Bored — it was thought that the full moon caused insanity to peak along with the higher tides it causes.

      2. Ironic comment. You believe in mind reading, in future forecasting of rare events, and that standards of conduct should be set by a fictitious character similar in personality to Mickey Mouse.

        1. You believe in mind reading,

          The irony meter just gave up and went home.

          1. I think it might be seeing a therapist.

            1. The lawyer dumbass imposes its supernatural beliefs at the point of a gun. Dumbass, fraudulent, and evil.

  6. As for Torres, there are two trends in conservative jurisprudence and thought, one authoritarian, one distrustful of authority. The decision easily fits into the latter camp.

    1. And thus you have every single Constitutional opinion and dissent as a victory, and loss, for the forces of conservativism. Depending on if you’re owning the libs or in a libs-driven crisis at the moment.

      Because the enemy must be both too strong and too weak.

  7. Parched March!

    Someone who lives near Prof. Blackman should conduct a wellness check.

  8. In Torres, it was a very narrow ruling and the Court only decided if shooting someone constituted a seizure.

    In this case, they didn’t even address if the seizure was reasonable and kicked that question back to the courts.

    “All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement. We leave open on remand any questions regarding the reasonableness of the seizure.”

    I’d say that’s the correct decision.

    Shooting can be seen as part of an apprehension – which is definitely a seizure.

    One note, the Court stated law enforcement don’t even have to be successful, i.e. the person gets away, in order for it to be a seizure.

    Justice Gorsuch didn’t like that.

    “It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel. . . . “

  9. Why doesn’t Ford get to remove the case to federal court at least?

    1. Plaintiffs probably joined an in-state defendant (driver of their car, driver of other car involved in the wreck, etc.) and did not bring any federal claims.

  10. ” I love the delusional leftwing narrative that America is more conservative than its ever been before in history. ”

    America continues to become less conservative. Nearly all of the liberal-libertarian mainstream recognizes (and applauds) this. Conservatives have been getting stomped in the culture war for so long as anyone reading this has been alive, with no end in sight.

    1. The tech billionaires own the medos and the Democrat Party. They will insure CCP interests are protected and furthered.

      1. Can you even get your own delusions correct?

        They will ensure THEIR OWN interests are protected and further.

        1. The interest of the tech billionaires is to kowtow to the CCP for access to its market, as big or bigger than the US market. They are disloyal to our country.

  11. “Block” or “bloc”?

    1. Bloque.

  12. A reminder for those who cheery pick stats and make too much of this stuff:

    About 70% of Supreme Court decisions are unanimous. It is not at all unusual for anyone to “side with” anyone. Its actually the norm.

    Sometimes an opinion is just an opinion.

  13. They are all Ivy League educated elitists who want all the unwashed masses in the rest of the country to shut up and follow orders from their betters. Of course, the hosts at VC are also all elitists, just a different flavor of elitist.

    1. I hope you are doing better.

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