What Would An Actual 6-3 Conservative Court Have Done This Past Term?

Fewer relists, more grants, and far more Kagan dissents.

The Supreme Court may have 6-3 conservative majority on paper. But in reality, there is more of a 3-3-3 split. If the Court actually had a 6-3 conservative majority, the past term would have been very different. Consider a few counterfactuals.

1. The Court would have overruled Smith in Fulton, and GVR'd Ricks.
2. The Court would have granted Dobbs in November 2020 without narrowing the QP, heard arguments in March 2021, and already overruled Whole Woman's Health. Then the Court would have GVR'd Cameron.
3. The Court would have granted review in Small v. Memphis Light, Gas & Water in October, and would have already overruled TWA v. Hardison.
4. The Court would have granted NYS Rifle & Pistol without narrowing the QP.
5. The Court would have granted Students for Fair Admission without a CVSG.
6. The Court would have granted review in Texas v. California, the original jurisdiction case that challenged the Golden State's "travel ban."

Justice Kagan would have been very busy churning out dissents.

I'm sure there are other examples. But these suffice to illustrate what a 6-3 conservative Court will actually have done. Yet, I suspect even after this lukewarm Term, advocates for Court "reform" will still rail against the arch-conservative Roberts Court. In their dreams.

Comments

[santamonica811]

In Josh Blackman's feverish wet dreams, "conservative" is defined as "What I, Josh Blackman, want the court to do." Poor, mistreated, Josh.

I wonder what kind(s) of abuse he suffered earlier in life, to make him thus? Not a pleasant thing to contemplate. Take a deep breath, Josh...it'll all be all right. This super-conservative 6-3 Supreme Court will make you happy in the vast vast vast majority of cases. Just go to your happy place and calm down.

[buckleup]

Don't worry it will be 7-2 before long. Two lonesome Obama nominated liberals with no pull.

[Rev. Arthur L. Kirkland]

Unless you have perfected a machine that mass-produces cranky, elderly, White, stale-thinking, southern, superstitious, easily frightened, roundly bigoted males -- and conservatives figure a way to register all of the newly minted clingers to vote -- a 7-6 Court is more likely than 7-2.

Just not enough clingers left in America to diminish (let alone reverse) the liberal-libertarian tide of our national progress, with fewer every day.

[DaivdBehar]

This idiotic supersitition comes from a math error at the Census.

[Bored Lawyer]

stale-thinking -- the irony here is so thick, you can cut if with a knife.

White . . . southern -- the only Southerner on the court currently is Justice Thomas, who is black. But we won't let facts get in the way of your narrative. However stilted and predictable it is.

[Rev. Arthur L. Kirkland]

Those attributes relate to the voters who might arrange right-wing justices rather than to the justices. Other than that, though, great comment!

[Bob from Ohio]

“What I, Josh Blackman, want the court to do.”

No, its not just him. This post could be written by at least 90% of conservatives.

Its a timid "moderate" [spit] court which is more interested in avoiding NYT/WaPo frowns than advancing real conservative aims. Imaginary "doctrine" victories which are not even full victories for the litigants.

[Krychek_2]

Bob, that's because your idea of "real conservative aims" is flat out nuts. I read your posts here, and you are Exhibit A in why "real conservative aims" simply cannot be allowed to prevail. Overrule Gideon? Sorry, I'm just not interested in living in a country in which constitutional rights are little more than an illusion, and autocratic right wing thugs have no checks and balances.

[Aktenberg78]

1st Amendment rights to offend favored groups and to free association? 2nd Amendment rights?

Those are the real Constitutional rights you leftists treat as an illusion. The only "rights" you care about are the ones courts invented, like killing third trimester babies and erupting in other men's rear ends.

[Krychek_2]

For someone who claims to be straight, you sure do obsess a lot about gay buttsex.

[Krayt]

His sentences could be arranged into quite effective erotica.

[Jeremy Smith]

I think the rules here are to engage in civil discourse. Nothing…not one thing…about your post is civil. I can only speak for me, but I will infer from my experience as a gay man, that your comments do very little to further intelligent discourse and actually do much harm to conservative thinking. Do better.

[Krychek_2]

Jeremy, you must be new here. Aktenberg never misses an opportunity to talk about gay butt sex. Even when, as here, it was completely irrelevant and he had to introduce the topic himself.

The straightest people in the land
Protest, methinks, too much
For in their closets you will find
They're either butch or such.

[David Nieporent]

Its a timid “moderate” [spit] court which is more interested in avoiding NYT/WaPo frowns than advancing real conservative aims.

I would hope so! Judges aren't supposed to be interested in advancing conservative aims! That confuses the political branches with the judiciary.

More importantly, neither you nor Blackman understand actual conservatism. It is not conservative to make radical decisions that make sweeping changes to the law. It is zealotry. To be conservative is to proceed modestly.

[M L]

Liberals make radical decisions that make sweeping changes to the law (contrary to original meaning).

And then, conservatism means preserving those decisions! Yeah right, what a load of horse shit.

[Krychek_2]

We're just testing the extent to which conservatives are actually principled, and for the most part, conservatives have been flunking.

[M L]

*shrug* That doesn't mean anything coming from the left.

[Brett Bellmore]

No, you're testing the extent to which they hold principles that you'd find it convenient for them to hold.

[Sarcastr0]

Excusing your own lack of principles based on your distorted partisan vision of the other side is just a recipe to never have principles.

Notice you don't seem many of us on the left - many who think the right nowadays lack principles - using that to justify throwing principles away.

[M L]

You did not comprehend the comment. There is no lack of principles identified here, and nothing to excuse.

[Sarcastr0]

The issue you take with DMN's definition of conservativism is that it does not sufficiently allow for a sweeping victory for your side. Nothing about the substance.

Your argument is exactly as unprincipled and outcome-oriented as it appears

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I wonder what kind of abuse YOU suffered, that all you know how to do s sneer and insult. Try something constructive once in a while. Or, if you can't, go signal your virtues somewhere else.

[santamonica811]

Yes, you're right. All I do is sneer and insult. If you ignore the 80% of my posts that do not.

(On the other hand; I think you're probably right in regards to my responses on Josh's posts. I gently suggest that this says more about the quality of Josh's legal insights than it does about my own posting tendencies. If Dr. Ed 2 went to law school, graduated, and went on to teaching at a 3rd-tier law school; he'd be Josh Blackman. There. Both a sneer and an insult in the same sentence.)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No, it says far more about you and your petty jealousies, whatever they may be, that you can't wait for a new Josh post, where you can lay out the same tired insult about third rate colleges and feverish imagination.

I can't recollect any serious blog garnering so many anti-fanbois, who seemingly hover over their keyboards, refreshing like crazy, breathless with anticipation of another chance to sneer and insult and pretend like it is Josh's fault that they can't tear their eyes away from the screen.

A-D-D-I-C-T-I-O-N

[DaivdBehar]

The Supreme Court is 9-0 lawyer scumbags, mostly Ivy indoctrinated, lives in Washington DC, adapting its degenerate culture, are rent seekers, are big government biased, lazy, worthless employees, with an arrogance and customer service 10 times worse than the post office. The Congress must begin to impeach them for their decisions.

[Aktenberg78]

The Congress is in cahoots with them. All of these people need to be gassed.

[DaivdBehar]

The Supreme Court is running rampant, with national policies being made by know nothing, Ivy indoctrinated lawyers. It serves the purpose of the Congress to avoid controversial political decisions.

However, judicial review is prohibited by Article I Section 1. Congress should be forced to enact all Supreme Court judicial review as well as all executive regulations. Or, they should be void. Then, Congress can face the voters.

[Aktenberg78]

I'm more concerned with the unelected Fed doing the job of the shylocks in subjecting our progeny to permanent penury.

[DaivdBehar]

Violence has worked well for the progressives after this summer. Now, all they have on TV are diverse people. Cadillac can gets it customers from black females, not from me.

[Doug Heffernan]

There's been 15 GOP-appointed justices since 1969, the last 3 of which were hand selected by the Federalist Society specifically to ensure that they'd be reliable conservatives with the utmost ideological purity and minimal risk of any sort of "ideological conversion".

Yet the blackman kid says 2 of those last 3 picks were losers, insofar as they advanced any sort of reliable conservative majority on the Supreme Court. The blackman kid should explain to his friends at the Federalist Society precisely how they failed so epically, and managed to pick a couple of wishy-washy non-conservatives who would pal around with Roberts all day.

What would it take to satisfy the blackman kid? Perhaps if Alito, William Barr, and the blackman kid himself started working on a proper list now, it would be ready for the next GOP president. They could work together to select a "handmaid's tale theocracy" list of justices who would, without question, enforce biblical law with an iron fist. Religious language could then enter into every part of the society. That is the dream.

But would it ever be enough? It still would probably take a dozen theocratic justices (still on a 9 member court) for the blackman kid to have any confidence of what he calls "conservative" outcomes.

[M L]

It seems reasonable to assume that the 1 or 2 key people who picked the candidates and who are referred to as "the Federalist Society" here, did not actually want original meaning to be followed, or major conservative aims to be realized.

Instead, it appears they are more in line with the deep-pocket establishment interests, of the moderate corporatists persuasion. In the telling of many, mostly on the left, these interests rely on keeping abortion and other issues alive in order to bring in the sucker voters, and then focus on important things like tax cuts for hedge funds, foreign wars, and funneling trillions of dollars to corrupt foreign countries where Junior can get a board seats and consulting gigs.

And then on the other side you have some of the dumbest and most ignorant people on the face of the earth, who say things like it will be a "handmaid tale theocracy" if the States were allowed to govern themselves in some area rather than having unconstitutional and illegitimate federal control.

[Brett Bellmore]

I think that's pretty much it.

One of the major themes of the last 30 years of conservative experience has been the discovery of the extent to which the leadership of nominally conservative organizations have been running a bait and switch on the members.

The discovery usually results from giving that organization a genuine opportunity to achieve its supposed aims, and seeing them do something else.

[Sarcastr0]

Both of your analysis are dripping with outcome requirements.

Even if you think the ends justify the means, deciding conservativism itself is now about ends justifying the means is a pretty strong own-goal.

[Brett Bellmore]

The end is constitutional government, the means is judges who care more about the Constitution than the regard of the media.

If the Federalist society, given the chance to name Supreme court justices on a silver platter, can't do better than this, you genuinely have to ask if they meant to do better than this.

Either that, or the whole judiciary is so corrupted at this point there's nobody available to nominate who'd do better, which is frighteningly plausible.

[NOVA Lawyer]

Nice trick that, defining "conservative" as some combination of what Josh wants, what the Justice Josh most agrees with would rule in every case, or some combination of both of those.

When you are reduced to arguing that Roberts, Kavanaugh, AND Barrett are not conservative, you just embarrass yourself.

[AmosArch]

They side with Leftists around 50% or more and have for the past decade or so but they are still far right cuz I have to justify how I'm a victim in all this when all the evidence clearly points the opposite direction.

[Rev. Arthur L. Kirkland]

Self-awareness-deprived hard-right fringers are among my favorite culture war casualties.

There are not so many of them left, and fewer each day, but they still are a force at the Volokh Conspiracy.

[DaivdBehar]

Hi, Artie. Boo. Start shopping the Caracas apartment. The purges begin in 2014.

[Armchair Lawyer]

They aren't that "conservative"... If anything, they're moderates.

If you look at the ideological leanings chart of SCOTUS judges, you'll find Kagan and Sotomayor and Breyer are pretty consistently liberal at well under -1 on their Martin Quinn scores. But Kav and Roberts really pretty close to 0

https://en.wikipedia.org/wiki/Ideological_leanings_of_United_States_Supreme_Court_justices

[Brett Bellmore]

Given how these scores are calculated, Roberts has been around long enough that his score means something. Kavanaugh has not.

[MollyGodiva]

SCOTUS is deeply Republican, political, and unrepresentative of the US public, but they are not stupid. They know if they push too hard then the Rs will not see power in Washington for a decade or more.

[AmosArch]

As you can see from some of above posts and the behavior of Dems there is zero reason for Republicans to compromise or play nice with the Supreme Court. The other side is going to act like you just appointed Rush Limbaugh anyway no matter who you pick and no matter how they turn out. I mean they were screaming their heads off about freaking David Souter of all people as if he would singlehandly turn the country into Gilead. And when they were obviously wrong they just trucked on as if nothing happened to their apocalyptic predictions for the next Republican confirmation battle. Shrub II tried to play nice with the judiciary and got zero credit for it.

Conservatives have rallied around the banner of appointing preservers of the constitution. And all we get for it is a neverending stream of centrists and crypto leftists who flip permanently or by the flip of a coin like Stevens/Souter or Roberts and Twitter bluechecks/CNN correspondent foaming at the mouth about how the next Republican cryptoleftist is a Nazi who will plunge the world into the next Dark Age.

Meanwhile libs have taken up the much more favorable position of appointing those who explicitly work toward their own political ends. And are lauded with news specials and artsy glowing magazine covers of how 'historic' and 'gamechanging' they are.

Maybe its time for some conservative 'living constitutionalists'.

[Martinned]

there is zero reason for Republicans to compromise or play nice with the Supreme Court

Just out of curiosity, what do you think that might look like? Because Republicans haven't tried anything resembling compromise in decades.

[AmosArch]

Stevens
Souter
Kennedy
O' Connor
Rehnquist
Barrett
Kavanaugh
Roberts

big brained Conclusion: Republicans haven't compromised one inch and have only nominated balls to the wall rightwing justices!

[Martinned]

The first four on that list aren't even on the court anymore, that's how long ago they were nominated. And the Justices from Rehnquist on down are definitely "balls to the wall rightwing justices" in the eyes of anyone except Blackman and (presumably) you. It's the slow pace of the radicalisation that makes you, like the frog in the pan, unable to see that.

(Well, that and a poor memory. Rehnquist is the guy that argued Plessy was correctly decided, and who dissented in Roe and in Nixon v. General Services Administration even before Reagan made him Chief. And yet somehow he still got 16 Democratic votes for his promotion.)

[SCS]

So an actual 6-3 "conservative" majority still wouldn't have come out in favor of your stupid arguments in California v. Texas then? Telling us anything, Josh...

[Sebastian Cremmington]

It’s best to think of Roberts, Kavanaugh, and ACB as Bush loyalists…and Bush Republicanism is essentially to do the bare minimum of liberalism to get elected and then hold oneself out as standing for traditional Judeo-Christian values. Bush Republicans get involved in politics because they want to help perpetuate Bush Republicanism which is at its heart the revolving door of government and corporate America and making sure people with values they share always have a seat at the table. The biggest flaw of Bush Republicanism is the fact George Wu Bush was grossly incompetent and it appears the heir to the Bush political legacy, George P Bush, is a fairly low quality individual that would achieve very little but for his last name.

[Rev. Arthur L. Kirkland]

Is that a vote for knuckle-dragging, superstition-drenched, half-educated, diffusely bigoted conservatism?

[apedad]

“If the Court actually….”

The “If…” statements are always made on the losing side.

If he had made the field goal…
If the condom didn’t break…
If we had won the lottery…

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

If only Trump hadn't cheated Hillary out of her turn

If only CO2 were as deadly as we pretend it is

If only the corals hadn't survived on their own for hundreds of millions of years

If only the ice caps had melted like we promised they would

If only the lockdowns had worked

If only our New York lockdown hero hadn't turned out to be even more touchy feely than Biden

If only

If only

If only

[Sarcastr0]

Do you see people on the left saying any of that stuff? They say a lot about you, not really about real life liberals.

[mse326]

I love how overturning Smith is conservative and not overturning it is anti-conservative. It's like Josh ignores that Smith was written by Scalia and joined by Rehnquist and Byron White (among others). The dissent was Blackmun, Brennan, and Marshall.

Perhaps the question doesn't actually fit Josh's narrative need for everything to be left v right, blue v red, conservative v liberal

[Mark N.]

It's interesting how conservative/liberal views have flipped on this question. I wonder how much of it is just what the salient issues are versus either side being particularly principled in judicial philosophy. Smith was a case involving a Native American religious group that wanted to use peyote. Liberals were sympathetic, while conservatives were not. Current cases are more likely to be Christian groups that object to things like gay relationships. Now, conservatives are sympathetic, while liberals are not.

[Mike Adamson]

If my grandma had wheels then she'd be a tractor.

[Jimmy the Dane]

A conservative court would have reversed the 2nd Circuit in the NYS case per curium finding that the second amendment protects carrying outside the home and telling the appeals court to go back to the drawing board. Ultimately, it is not a very hard question. States have licensing programs for carry already. The court just needs to order officials not to use that regulatory framework in a bad faith manner operating as a de facto no issue jurisdiction.

[Aladdin's Carpet]

"Overrule TWA v. Hardison"

Ok, I dont want to do this. Conversatism to me, anyhow, would counsel against expansive readings of the civil rights act, and I dont know anyone who actually wants to do this.

Why would this be a good thing again? Why can't the other provisions of the civil rights act be interpreted in the same way as this?

[SimonP]

Josh, you are a child.

[Don Nico]

Josh,
Assuming that you do not want the Court packed, you're lucky that your preferred solutions were not adopted.

[ReaderY]

Compared to the way a Justice Brennan would have rules in these cases, this is a pretty conservative court.

[dwb68]

I don't agree that a "conservative" court would have done these things. Overruling precedent Ala Smith is not something do be done lightly and I am unconvinced Fulton was the right vehicle. Texas v California was overwrought. casus belli!! Not really. If California really want to go to war with Texas go for it, I say, see who wins.

[dwb68]

and because of the byzantine nature of NY gun laws, I am unconvinced that narrowing the QP means much. They'll be other cases. I was skeptical that they wound grant it given how byzantine NY gun laws are.

[Aktenberg78]

Yeah and it's now been 13 years since Heller. Why are gun cases supposed to "percolate?" When a court rules on Friday that a homosexual has a right to "marry" someone of the same sex, he gets a "marriage" license the very next day. No stay of the ruling, no years of appeals, no "percolation."

[Aladdin's Carpet]

The court isn't going to rule that every state is unrestricted carry. It just isn't.

The question becomes what systems are acceptable and what are not. The QP must be narrow to be able to answer that question satisfactorily.

I'm not defending the courts delay in issuing something, I think its unacceptable. But they took it now, and the QP is perfectly reasonable.

[Aktenberg78]

No one is asking for unrestricted carry in every state. We're asking that an enumerated right be subject to greater than rational basis scrutiny, and that it not take decades to do so.

[Brett Bellmore]

But the reason they're not going to rule that isn't because there's no basis for doing so. It's because they're not terribly enthusiastic about the 2nd amendment to begin with. There's no getting around the fact that the Court does NOT treat the 2nd amendment like a right they actually approve of would be treated.

Rather, it's a right they reluctantly acknowledge if they have no way of avoiding it. The only reason the Heller case got taken by the Court in the first place is that Heller had prevailed at the district court level. And, worse, in the District where the Court itself lives. So ignoring it wouldn't keep the 2nd amendment at bay.

Had Heller lost at the district level, it would have been another case of cert denied without comment.

[Aladdin's Carpet]

Yeah agreed on that.

I mean the court narrows the QP all the time not necessarily for ideological reasons but at times for vehicle reasons.

I mean there are times the court modified the scope of QP. For Citizens United the court actually expanded it ... it was so gung ho on getting the result it did that it completely disregarded the much narrower argument advanced (that, honestly, probably could have gotten 9-0)

I am just not convinced that is what is happening here. Even if the court rules all states must be shall issue ... where exactly does that leave NY's system? On what grounds can permits still be denied? Self-defense? Do I take your word for it?

So many questions ought to be answered here. And just last term Fulton was an excellent example of leaving too many questions unanswered ... the reason Barrett did not ultimately overrule Smith is because it would leave too many things unresolved. A good vehicle would be narrow enough to resolve stuff in a peacemeal fashion.

I would much rather a narrower definitive ruling than a broad ruling that is meaningless. The questions as they are now allows the court to give much clearer instructions on what happens from here, and imo that's a good thing.

[Brett Bellmore]

"For Citizens United the court actually expanded it … it was so gung ho on getting the result it did that it completely disregarded the much narrower argument advanced"

Once the deputy SG argued before the Court that he could ban books, that was kind of inevitable. Mind, when the AG, (Kagan!) got a chance, they scaled that back a little. No book bans, but pamphlets? Definitely fair game.

After that, there wasn't anything the Court could reasonably do but stomp on that notion with hob nailed boots.

[Aunt Teefah]

Good god, has there ever been a more petulant child than Josh Blackman? You’d think that if your side had a six justice majority, with only one of those nominate by a president who won the consent of the electorate, you’d put your head down and be thankful for what you have. But some people know nothing but greed. Pigs get fat, but hogs get slaughtered, Josh.

[Sarcastr0]

Can't say I see a jurisprudential throughline.

And even a policy throughline seems lacking, once you realize this post leaves legal analysis far behind. I guess one could see teeing things up to roll back a bunch of 1960s laws via large exceptions.

No, this seems entirely about owning the libs. Sometimes just imaginary libs because not everything there would make people on the left actually unhappy.

[Rev. Arthur L. Kirkland]

"No, this seems entirely about owning the libs."

Which seems a strange approach for the side that is losing ground in popularity and in the culture war. Attempting to persuade more people to accept reasonable conservative(ish) positions -- rather than continuing to push stridently at lost causes, and irritating or provoking the majority -- seems a more prudent course.