The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Flash back to June 2020. The supposedly-conservative 5-4 majority of the Supreme Court, in case after case, swung to the left: McGirt, Mazars, Vance, June Medical, Regents, Bostock, and so on. Things became so bleak I referred to the period as Blue June.
Now, jump forward to June 2022. The expanded 6-3 conservative majority, in case after case, swung to the right: West Virginia, Castro-Huerta, Kennedy, Dobbs, Bruen, Carson, and so on. In my lifetime, I could not recall such a consistent string of decisions that favored conservative jurisprudence. I called the period, fittingly, Red June.
What do I make of June 2023? Well, it is somewhere in between Red June and Blue June. Call it Purple June. There were several significant decisions to the right: 303 Creative, Nebraska, and Students for Fair Admission. (Curiously, all the hard-right decisions came on the last two days of the term–more on timing later.) There were several significant decisions to the left: Moore, Texas, Brackeen, and Milligan. And there were a few significant decisions that are harder to characterize: Groff, Mallory, and Pork Producers. It's a mix.
There will be umpteen efforts to explain this term, but ultimately, a single factor predominates: Chief Justice Roberts and Justice Kavanaugh consistently vote with the Court's progressives to form a five-member block. According to Empirical SCOTUS, Chief Justice Roberts and Justice Kavanaugh have a 95% voting agreement rate since 2018. Moreover, according to the New York Times, this term Justice Kavanaugh was in the majority of divided cases 90% of the time, while the Chief was in the majority 86% of the time. Justice Thomas was in the majority of divided cases only 55% of the time. Shortly after Kavanaugh joined the Court, there were a spate of stories suggesting that Roberts would vote like Justice Kavanaugh. Five years in, we can confirm those early prognostications.
I offered the New York Times this quote:
Some conservatives have been frustrated. Gov. Ron DeSantis of Florida, a Republican and a rival to Mr. Trump for the Republican presidential nomination, recently said that none of Mr. Trump's three appointees "are at the same level" of Justices Thomas and Alito.
Josh Blackman, a law professor at South Texas College of Law Houston, said the critique had force from a conservative perspective, and he questioned the adequacy of the Trump administration's vetting process, which relied on lists of potential nominees compiled by lawyers with ties to conservative legal groups like the Federalist Society and the Heritage Foundation.
"For different reasons, Justices Gorsuch, Kavanaugh and Barrett have and will continue to disappoint conservatives," Professor Blackman said. "I don't know that future 'short lists' are worth much if they are made by the same people who generated the last batch of lists."
Remember that Justice Kavanaugh was not Trump's first list. (Nor was Gorsuch). Justice Kavanaugh's exclusion from the unadulterated, unlobbied list was quite deliberate. He was added, no doubt, so he could be nominated. This term, Justice Kavanaugh voted with Justice Jackson 62% of the time, but voted with Justice Thomas only 48% of the time. Did everyone who vigorously advocated for Justice Kavanaugh predict that he would vote with the author of the Obamacare decision 95% of the time, and be closer jurisprudentially to Ketanji Brown Jackson than to Clarence Thomas? Governor DeSantis is not wrong.
I've now finished all of the opinions of the Court this term. Well, to be precise, I didn't read every word. I skimmed some parts and skipped others. But I've internalized the decisions, and plan to write a bit. Stay tuned.