The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Erwin Chemerinsky published an op-ed in the Los Angeles Times, titled "Are Supreme Court justices 'partisan hacks'? All the evidence says yes." Sometimes, headline writers exaggerate, and write sensational titles to draw people in. But not here. Chemerinsky makes this point in the very first paragraph:
If Supreme Court justices don't want to be seen as "partisan hacks," they should not act like them.
And Chemerinsky offers a challenge to Justice Barrett:
Barrett's protest against the justices being seen as "partisan hacks" rings hollow when that is what they have become. And it is risible to say that "judicial philosophies are not the same as political parties." I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.
Usually, law professors avoid speaking in absolutes. We use hedge words like "most" or "many" or "almost always." But Erwin threw down an absolute gauntlet. Is there a "single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party"? Can Barrett even name one? Sure. The Court turned away all of the 2020 election litigation. As did many conservative judges. Maybe Erwin would counter that those cases were not really from the Republican Party, but were from MAGA fringe. There are other examples.
In June, I offered a short list of what a real 6-3 Conservative Court would have done:
- The Court would have overruled Smith in Fulton, and GVR'd Ricks.
- 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.
- The Court would have granted review in Small v. Memphis Light, Gas & Water in October, and would have already overruled TWA v. Hardison.
- The Court would have granted NYS Rifle & Pistol without narrowing the QP.
- The Court would have granted Students for Fair Admission without a CVSG.
- The Court would have granted review in Texas v. California, the original jurisdiction case that challenged the Golden State's "travel ban."
There are many more cases in which the Court did something the Republican Party–whatever it means–disfavored. In the past week, Justices Breyer, Thomas, and Barrett all made this point. I am grateful it is one on which all of the Justices agree.