The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On June 18, 2021, I wrote, "We don't have a 6-3 Conservative Court. We have a 3-3-3 Court." I'm not sure if I was the first person to coin the phrase 3-3-3 Court, but I was one of the first. And I elaborated on this theme in a Newsweek column, titled "Conservative Justices Warn Kavanaugh and Barrett Lack 'Fortitude.'" Like with most things I write, this post proved controversial. Conservatives were unhappy that I lumped in Justices Kavanaugh and Barrett in with the Chief Justice. And progressives were miffed that I would try to minimize how radical the Court was by identifying a phantom moderate middle. One year later, we can revisit this paradigm.
As a threshold matter, we can look at how often the Justices agreed with each other. According to the New York Times, Chief Justice Roberts and Justice Kavanaugh agreed in 98% of argued cases. SCOTUSBlog pegged the number at 100%. I think this metric is somewhat inflated, because the Chief Justice's vote in Dobbs really should not be lumped in with those of the majority. But Dobbs aside–and that is a huge aside–Roberts and Kavanaugh are two peas in a pod. And don't forget Kavanaugh's already-influential concurrence in Bruen, which the Chief joined. Early predictions of a "budding bromance" have proved apt. By contrast, there was a much bigger gap with the newest member of the Court. Justice Barrett lined up with the Chief around 85% of the time. And Justice Alito was not far behind.
Another way to identify the Court's center is to measure how often the conservatives vote with the progressives. Roberts and Kavanaugh joined the Court's three progressives in four 5-4 cases: Biden v. Missouri (CMS vaccine mandate), Nance v. Ward (method of execution), Torres v. Texas DPS (state sovereign immunity), and Biden v. Texas (Remain in Mexico). Each of these cases was fairly significant. Justices Thomas, Gorsuch, and Barrett each voted with the Court's progressives twice in 5-4 splits, all in fairly minor cases. Justice Alito had zero such cases.
On the merits docket, Barrett is much closer to Thomas, Alito, and Gorsuch than she is to Roberts and Kavanaugh. This past term, the 3-3-3 paradigm did not hold. But on the shadow docket, the 3-3-3 Court is alive and well. This term, Kavanaugh and Barrett placed their stamp on the shadow docket. In my view, the demarcation point was John Doe 1-3 v. Mills. On October 30, I observed that Justices Barrett and Kavanaugh had cut the fuse on the shadow docket. Since that point, Justices Barrett and Kavanaugh have (likely) voted opposite of Justices Thomas, Alito, and Gorsuch in many cases. I say "likely," because we cannot be certain how a Justice voted on the shadow docket, unless there are four dissents. On the shadow docket, with three dissents, it is impossible to know for sure. Let's walk through five such disputes.
- Dr. A v. Hochul/We The Patriots v. Hochul (12/13/21): This case involved a New York policy that required health care workers to receive a vaccine. The regime lacked a religious exemption. The lower courts declined to block the requirement. The Supreme Court denied an injunction. Justice Thomas would have granted the application. Justices Gorsuch and Alito dissented from the denial of the application for injunctive relief. Six months later, the Supreme Court would deny cert in Dr. A. (I will revisit that denial later in the post.)
- Moore v. Harper (3/7/22): This North Carolina case involved the independent state legislature doctrine. The Court denied the application to stay pending the disposition of the cert petition. Justice Alito dissented from the denial of the application for a stay, joined by Justices Thomas and Gorsuch. Justice Kavanaugh concurred with the denial of the stay, and suggested that the Court should grant cert in an "appropriate case." Three months later, on June 30, the Court granted review in Moore, but the lower-court ruling will remain in effect for the next year or so.
- Coalition for TJ v. Fairfax County School Board (4/25/22): This case involved an affirmative action policy at a Virginia high school. The District Court enjoined the policy. The Fourth Circuit stayed the injunction. The Supreme Court denied a motion to vacate the stay. There was no opinion. Justices Thomas, Alito, and Gorsuch would have granted the application to vacate the stay.
- Dunn v. Austin (4/18/22): This case involved Air Force Reserve members seeking an exemption from the vaccine mandate. The lower courts denied relief. And the Supreme Court denied an injunction pending appeal. Justices Thomas, Alito, and Gorsuch would have granted the application for an injunction pending appeal.
- Ritter v. Miglioril (6/9/22): This case involved counting of undated mail-in ballots in one state-court judicial election. The Third Circuit allowed counting of undated ballots. The Supreme Court denied application for a stay. Justices Alito, Thomas, and Gorsuch dissented from the denial of the application for a stay. Alito wrote, "For these reasons, it appears to me that the Third Circuit's interpretation is very likely incorrect, and I would grant a stay to preserve the opportunity to review that decision prior to the elections in November."
In each of these cases, Justices Alito, Thomas, and Gorsuch were willing to grant emergency relief. And I think it is safe that assume that Justices Barrett and Kavanaugh voted against emergency relief.
By my count, there were at least two cases in which Barrett and Kavanaugh voted for emergency relief, where Justices Thomas, Alito, and Thomas would have denied relief.
- Austin v. U.S. Navy Seals 1-26 (3/25/22): This case involved a vaccine mandate for service members. The District Court enjoined the vaccine mandate with respect to the service members. The Fifth Circuit declined to stay the injunction. The Supreme Court granted a partial stay, allowing the mandate to be enforced in part. Justice Thomas would have denied the application for a partial stay. He was joined by Justices Alito and Gorsuch. They would have exempted the Seals from the mandate.
- NetChoice v. Paxton (5/31/22): This case involved a Texas law that restricts social media firms. The Western District of Texas granted an injunction. The Fifth Circuit stayed the injunction. The Supreme Court vacated the Fifth Circuit's stay. Justice Alito, joined by Justices Thomas and Gorsuch dissented from the grant of the application to vacate the injunction. Alito wrote, "I would not disturb the Court of Appeals' informed judgment about applicants' entitlement to a stay." Justice Kagan also dissented. By process of elimination, we know for certain that there were five votes to vacate the stay: Chief Justice Roberts, and Justices Breyer, Sotomayor, Kavanaugh, and Barrett.
Why was emergency relief granted in these two cases? Who knows? Alas, we cannot simply read the opinions, because there were no opinions to read. Moreover, in both cases, the Court overrode a ruling from the Fifth Circuit. The NetChoice panel included Judges Jones, Southwick, and Oldham. And the Navy Seals panel included Judges Jones, Duncan, and Engelhardt. These panels include several of the most conservative judges in the Fifth Circuit, and probably in the federal judiciary. Yet, these were the cases where Barrett and Kavanaugh were (likely) moved to grant emergency relief on the shadow docket. I suspect they were (likely) trying to maintain the status quo, or something like that. But the other factors in Doe v. Mills (short-fuse, absence of circuit split, etc.) were not satisfied. I am not persuaded the Doe v. Mills standard is a standard at all, but rather was a stopgap response to incessant shadow docket criticism. The Supreme Court uses the shadow docket when it wants to.
One of the biggest exceptions to the 3-3-3 Court on the shadow docket was Merill v. Milligan. On January 24, 2022, a three-judge panel of the Eleventh Circuit issued an injunction to block Alabama's new electoral maps. The court found that Alabama should have created a second majority-minority district. Alabama appealed that ruling to the Supreme Court, and sought a stay of the injunction. On February 7, the Supreme Court issued an order in Merrill v. Milligan and Merrill v. Caster. The application for a stay was treated as a petition for a writ of certiorari before judgment. The Court granted that petition. The Court also stayed the injunction while it resolves the appeal. Alabama scored the shadow docket trifecta.
The Court split 5-4. Justice Thomas, joined by Justices Alito, Gorsuch, Kavanaugh, and Barrett supported the Court's order. Chief Justice Roberts dissented from the grant of the application for stays. But he agreed to grant certiorari before judgment, and would set the case for arguments next Term. Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. They would not have granted the stay. Justice Kavanaugh wrote a concurrence, joined by Justice Alito, that responded to Justice Kagan's dissent. The other members of the majority did not explain their reasoning.
At the time, I dubbed Merrill the most important shadow docket entry since John Does 1-3 v. Mills. Justices Barrett and Kavanaugh (likely) granted emergency relief. Justice Kagan's dissent called out Justice Barrett:
The question whether to accept Alabama's position demands serious and sustained consideration—the kind of consideration impossible to give "on a short fuse without benefit of full briefing and oral argument." Does v. Mills, 595 U. S. ___, ___ (2021) (slip op., at 1) (BARRETT, J., concurring in denial of application for injunctive relief ).
I think Merrill is the exception to the rule for emergency relief this past term. I'm not sure that Merrill is consistent with Doe v. Mills. For what's its worth, the case was set for argument on October 4.
Another facet of the shadow docket concerns dissents from the denial of certiorari. By my count, there were three cases in which Justices Thomas, Alito, and Gorsuch would have granted certiorari in a case. It is impossible to know for certain, but it is safe to presume that Justices Kavanaugh and Barrett both did not vote to grant cert. Either could have provided the necessary fourth vote.
- Roman Catholic Diocese of Albany v. Emami (11/1/21): This case involved a New York mandate that insurance policies must cover abortions. After four conferences, the Court GVR'd the case in light of Fulton. Justices Thomas, Alito, and Gorsuch would have granted the petition for a writ of certiorari. I wrote about the denial here. Last month, the New York Court held that Fulton changed nothing. Shocker. The Supreme Court will soon enough be facing another cert petition.
- Dignity Health v. Minton (11/1/21): This case presented the question whether a California Catholic hospital can be required to perform a hysterectomy on a transgender patient. After four conferences, the Court denied cert. The Court did not GVR in light of Fulton, like in Roman Catholic Diocese of Albany. Justices Thomas, Alito, and Gorsuch would have granted the petition for a writ of certiorari.
- Dr. A. v. Hochul (6/30/22): This case involved New York's vaccine mandate for healthcare workers. The Court had denied an emergency application in this case in December. After the last day of the term, the Court denied certiorari. Justices Thomas, Alito, and Gorsuch dissented from the denial of certiorari. Justice Thomas would not "miss the chance to answer this recurring question in the normal course on our merits docket." Indeed, Thomas alluded to the Court's hesitancy about deciding shadow docket disputes: "Here, the Court could grant a petition that squarely presents the disputed question and consider it after full briefing, argument, and deliberation. Unfortunately, the Court declines to take this prudent course." The Court turned this case away on the shadow docket, and on the merits docket.
This term, I do not think the merits docket reflected a 3-3-3 Court. But on the shadow docket, the 3-3-3 Court appeared in many of the most high-profile cases. Justices Thomas, Alito, and Gorsuch were far more likely to grant emergency relief. Following Mills, Justices Kavanaugh and Barrett were far more likely to deny emergency relief.