The Volokh Conspiracy

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The 3-3-3 Court Returns in Arthrex v. U.S.

Justices Kavanaugh and Barrett joined the Chief who rewrote the statute to save its constitutionality.


Arthrex v. U.S. proved, once again, that we do not have a 6-3 conservative court. The votes here were messy, but the signatures of the 3-3-3 Court remained. First, Chief Justice Roberts and Justices Kavanaugh and Barrett found a constitutional violation, but then rewrote the statute. Second, Justices Breyer, Sotomayor, and Kagan strategically cast their votes to avoid finding a constitutional violation, but concurred with Roberts to ensure a narrow remedy. (They made a similar move last Term in Seila Law). In a pattern familiar to all conservatives, Justices Alito, Thomas, and Gorsuch were all over the map. They do not vote as a bloc.

I often describe the progressive trio as the Kagan 3. When the votes matters, they vote as a bloc. Regrettably, I am now dubbing a new trio: the Roberts 3. SCOTUSBlog should track how often these triumvirates vote in lockstep.

I am especially disappointed that Justices Kavanaugh and Barrett joined the Chief's remedial section for several reasons.

First, the Chief's decision had painful shades of NFIB. He creatively reimagined what Congress would have wanted, and rewrote the statute. The blue pencil returns. Now, the Director can rehear decisions made by the PPTAB. This sort of judicial inventiveness is a hallmark of the Chief's jurisprudence. And Justices Kavanaugh and Barrett signed onboard that enterprise.

Second, Justice Gorsuch's erudite concurrence was an ode to Justice Scalia. There were citations to Scalia's Morrison v. Olson dissent, and scholarship from Calabresi, Prakash, and Lawson. I would have hoped that Justices groomed by the Federalist Society, would, you know, cite Federalist Society scholars. Alas, nope. It was not lost on me last year that Roberts refused to cite Scalia in Seila law. And once again, there are no citations to the Scalia dissent.

Third, we are now getting a sense of the types of issues that animate Justice Kavanaugh. He is livid about student athletes. He wrote a vituperative concurrence in the unanimous NCAA v. Alston. He also worried about seniors taking falls when home alone. So he wrote separately. But he had no occasion to write anything in Arthrex. Or in Seila Law. There was a time when Judge Kavanaugh argued that Scalia's Morrison dissent should become the majority opinion. Now, he has had two occasions to cite it in seminal separation of powers cases. But instead, he hitched a ride on the Chief's wagon.

Justice Thomas seemed perturbed. He had especially pointed language about the Roberts plurality. Look at his closings of Parts II, III, and IV:

  • "The Court simply criticizes as overly formalistic the notion that both Clauses do exactly what their names suggest: The Appointments Clause governs only appointments; the VestingClause deals just with the vesting of executive power in thePresident.  I would not be so quick to stare deeply into the penumbras of the Clauses to identify new structural limitations." 

  • "Perhaps the majority thinks Arthrex should receive some kind of bounty for raising an Appointments Clause challenge and almost identifying a constitutional violation. But the Constitution allows us to award judgments, not participation trophies."

  • "A tricky Congress could allow the Executive to sneak a powerful, Cabinet-level-like officer past the Senate by merely giving him a low rank. Maybe.But this seems like an odd case to address that concern. And, even if this suit did raise the issue, the Court should be hesitant to enforce its view of the Constitution's spirit at the cost of its text."

Penumbras. Participation trophies. The Constitution's spirit. Ouch. Those are fighting words. And Kavanaugh and Barrett had nothing in response.

Perhaps I am raising the alarm too soon. Both Justices are early in their tenures. Yet, I have seen little that has given me optimism. At great cost, I think we got two more Robertsians–smart lawyers who try to lawyer their way to the right solution. Original meaning is merely an afterthought. Maybe everything will change in Collins. We'll see.