The Volokh Conspiracy

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The Most Fascinating ConLaw Decision of the Term: PennEast Pipeline v. New Jersey

The non-curious/curious caucus divide.


This term has been rather sleepy. Fulton fizzled. Mahanoy disappointed. Yellen confused. So far, only one case will make the Fourth Edition of the Barnett/Blackman casebook: Cedar Point Nursery. The AFP case may be useful for the freedom of association chapter, but I suspect the opinion will be fractured.

Still, there has been one important constitutional law decision that largely flew under the radar: PennEast Pipeline v. New Jersey. Ilya may be right that both sides deserved to lose. But the contrast between the majority opinions and the dissenting opinions reveal a lot about the present Roberts Court. The Justices divide about text, history, and structure. They disagree about enumerated powers and sovereign immunity. They differ about the role that historical practice plays in constitutional discourse. This case has everything.

Moreover, the lines were not ideological. Chief Justice Roberts wrote the majority opinion, which was joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. Justice Gorsuch wrote one dissent, which was joined by Justice Thomas. Justice Barrett wrote a second dissent, which was joined by Justices Thomas, Kagan, and Gorsuch.

I would describe this line as the non-curious/curious caucuses. The members of the majority seem to lack a curiosity about the law. They largely view the law in a utilitarian fashion to achieve certain outcomes. Of course, they do not share the same values. Justices Alito and Sotomayor approach the law from diametrically opposite perspectives. But they are both heavily influenced by pragmatic concerns. Justice Breyer wants to make democracy work. And Chief Justice Roberts and Justice Kavanaugh are concerned with maintaining some abstract form of equipoise. These principles, whatever they are, generally prevail over any formal doctrine. They are not textualists or originalists. They are pragmatists. And in a case without any obvious ideological valences, they unite.

The dissenters are different. They routinely exhibit a genuine curiosity about the law. They are often willing to challenge staid conceptions of the law in the pursuit of ideas. More often than not, Justice Kagan has to suppress those urges to keep a majority opinion. But during oral arguments, and when she is in dissent, Kagan shows her scholarly flair. Justice Thomas routinely seeks to challenge conventional thinking. And Justice Gorsuch signs onto that mantle. And, I'm glad to see that Justice Barrett is flexing her intellectual muscles. Her Penn East dissent was the strongest opinion she has written so far. I'll have much more to say about it in a later writing.