The Volokh Conspiracy

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New Op-Ed: Conservative Justices Warn Kavanaugh and Barrett Lack 'Fortitude'

"Twice this term, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone."


The Supreme Court's Term has now drawn to a close. So far, we don't have any leaks about internal struggles on the Supreme Court. Yet, on at least two occasions this Term, Justices Thomas, Alito, and Gorsuch have expressed concern about the two newest members of the Court. Specifically, the Thomas-3 allege that Justices Kavanaugh and Barrett lack backbone. Blink, and you'll miss these serious allegations. But parse the Court's cases carefully–especially the shadow docket–and the red flags are unmistakeable.

Newsweek has published my new op-ed, titled Conservative Justices Warn Kavanaugh and Barrett Lack 'Fortitude.'

Here is the introduction:

For the first time in a generation, there are six conservative justices on the Supreme Court. In time, this sextet will incrementally push the Court to the right. Yet, three of them are already sounding an alarm. Twice this term, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone.

In an excessive force case, the conservative trio wrote that the two newest Justices were "unwilling to…bear[] the criticism that" denying the prisoner's appeal "would inevitably elicit." And in a religious liberty case, the Thomas-3 charged that Kavanaugh and Barrett lacked the "fortitude" to overrule a controversial precedent. The conservatives implied a similar fissure in several other cases.

It is fairly common for justices to criticize their colleagues' legal judgments. But it is rare for justices to claim that their colleagues are motivated by cowardice. The putative 6-3 conservative majority is, in fact, far from monolithic. At present, we have a 3-3-3 Court. There are three progressives, three conservatives and three members in the middle. Only time will tell whether Justices Kavanaugh and Barrett will sidle up to Chief Justice John Roberts' P.R.-based jurisprudence, or whether they will stand on their constitutional principles.

These warnings came in two cases. First, Fulton:

Gorsuch charged that the majority "dodg[ed] the question today." In a not-so-subtle warning to the other two Trump appointees, Gorsuch wrote that "these cases will keep coming until the Court musters the fortitude to supply an answer." Gorsuch thus called out Kavanaugh and Barrett for lacking "fortitude" in the present moment. This personal attack no doubt reflects simmering tensions within the Court, and those tensions have now spilled into public view.

Second, Lombardo v. City of St. Louis:

Alito, joined by Thomas and Gorsuch, dissented. Based on the process of elimination, Kavanaugh and Barrett agreed with the Court's strange punt. Alito savaged his colleagues. He wrote that the Court was "unwilling to…bear[] the criticism that" denying the appeal "would inevitably elicit." In all likelihood, this punt merely delayed the government's inevitable victory. But, in the meantime, the Supreme Court gets credit for keeping the case alive. Once again, the Court aired its dirty laundry in public. The three conservatives alleged that Kavanaugh and Barrett were afraid of public criticism, and instead chose to virtue-signal.

The 3-3-3 dynamic was evident in other cases, including South Bay II, Arlene's Flowers, Republican Party of Pennsylvania v. Degraffenreid, and others.

We should take these warnings seriously.