The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

We don't have a 6-3 Conservative Court. We have a 3-3-3 Court.

Thomas, Alito, and Gorsuch are on the right. Roberts, Kavanaugh, and Barrett are somewhere to the left of the right. And Breyer, Sotomayor, and Kagan will do anything to form a majority.


On Thursday, June 17, the new Roberts Court formally revealed itself. In three cases, the Court largely split into three triads: a conservative wing, a moderate wing, and a principle-fluid progressive wing.

First, consider Fulton v. City of Philadelphia. Justices Thomas, Alito, and Gorsuch would have overruled Smith. Justices Barrett and Kavanaugh concurred, and explained why they would not overrule Smith. The two newest members of the Court also joined the Chief's meaningless majority opinion that set zero precedents. And Justices Breyer, Sotomayor, and Kagan were willing to rule against LGBT rights in order to avoid a far more expansive precedent.

Second, consider Nestle v. Doe. In Part III of the plurality, Justices Thomas and Gorsuch would have gone further, and held that Congress, and not the Courts, should create causes of action. Justice Alito ostensibly dissented, but he agreed that Part III of Justice Thomas's opinion "make strong arguments that federal courts should never recognize new claims under the ATS." Chief Justice Roberts and Justice Barrett did not join Part III. Justice Kavanaugh did. Here, there was no conservative majority, so Justice Sotomayor was free to write a vigorous dissent, joined by Justices Breyer and Kagan.

Third, consider California v. Texas. In dissent, Justices Alito and Gorsuch found standing and would have ruled for the Plaintiffs. Justice Thomas wrote a very begrudging concurrence, but in light of his Article III sticklerism, he could not go along with the dissenters. Chief Justice Roberts and Justices Kavanaugh and Barrett lined up with the Court's progressives on a hyper-narrow decision that made some important concessions on the nature of the mandate.

We do not have a 6-3 conservative Court. The Chief may have been conservative at one point, but he has embarked on a life-long odyssey to pilot the Court to middling moderation. Justice Kavanaugh was always cut from the same cloth as Chief Justice Roberts. He played the part to get the job, but has consistently showed his true colors. And Justice Barrett is not who conservative thought they were getting. Her $2 million book advance may seem like a bad deal in a couple years. (See my fourth point here).