The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recently, Ron DeSantis, the Governor of Florida and GOP presidential candidate, offered a mild criticism of President Trump's three Supreme Court nominees. "I respect the three [Trump] appointees," DeSantis said, "but none of those three are at the same level of Justice Thomas and Justice Alito." DeSantis is not wrong. Consistently, Justices Brett Kavanaugh, Amy Coney Barrett, and to a lesser extent Neil Gorsuch, have voted to the left of Justices Clarence Thomas and Samuel Alito. Today, critics assail this Supreme Court as the most conservative bench in modern history. True enough. But it could have been far, far worse for progressives if President Trump had actually nominated Justices in the mold of Justices Scalia, Thomas, and Alito.
Look past the string of headline-grabbing conservative victories concerning abortion, affirmative action, the religion clauses, the Second Amendment, and so on. Rather, count up the 5-4 cases on the merits docket that swing left, the rejection of applications on the emergency docket brought by conservative litigants, and the denials of certiorari petitions that could have moved the law to the right. These three-dozen cases are all progressive victories snatched from the jaws of conservative defeat. On balance, progressives should be grateful for President Trump's not-so-conservative SCOTUS picks.
The Merits Docket
Let's start with the Supreme Court's merits docket. Justice Gorsuch has cast the deciding vote in five 5-4 cases that swung to the ideological left. First, Sessions v. Dimaya held that a federal immigration law was unconstitutionally vague. Second, Washington Department of Licensing v. Cougar Den exempted members of an Indian tribe from a tax on fuel importers. In both of these two cases, Justice Kennedy voted with the Court's conservatives in dissent. The third case, Herrera v. Wyoming, protected the right of an Indian Tribe to hunt on "unoccupied" property. Fourth, United States v. Davis held that a criminal penalty for using a firearm during a "crime of violence" was unconstitutionally vague. The fifth case was the most significant. Justice Gorsuch wrote the majority opinion in McGirt v. Oklahoma, which held that large portions of Oklahoma, including the city of Tulsa, remain "Indian country." As a result, the state of Oklahoma could not prosecute crimes committed by members of the Creek nation. In each of these five cases, President Trump's nominee to replace Justice Scalia voted opposite the Court's four conservatives.
After Justice Kavanaugh replaced Justice Kennedy, it should have become harder for the Court's four progressives to cobble together a majority for 5-4 cases–in theory at least. In May 2019, Justice Kavanaugh wrote the majority opinion in Apple v. Pepper, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The case held that iPhone owners could sue Apple for alleged antitrust violations.
In September 2020, Justice Ginsburg passed away. By the end of October, Justice Barrett was confirmed to fill the vacancy. Now, with only three progressives on the Court (Breyer, Sotomayor, and Kagan) two conservative Justices would have to swing left to form a five-member majority. Yet, the progressives would prevail in five more 5-4 decisions. In each case, Chief Justice Roberts and Justice Kavanugh joined the three progressives. First, Biden v. Texas approved the Biden administration's immigration policy. Second, Biden v. Missouri held that the federal government could mandate vaccines for health care workers. Third, Nance v. Ward ruled in favor of a death row inmate. Fourth, Torres v. Madrid allowed a plaintiff to sue police officers who shot her. Fifth, Torres v. Department of Public Safety ruled that Texas could be sued for damages.
In June 2022, Justice Breyer retired, and was replaced by Justice Ketaji Brown Jackson. This past term, Chief Justice Roberts and Justice Kavanaugh continued to join the Court's three progressives in two prominent 5-4 cases. Allen v. Milligan held that Alabama violated the Voting Rights Act by not creating a second "majority-minority" district. And Cruz v. Arizona permitted a prisoner to challenge his conviction in federal court.
Finally, even when Justice Kavanaugh votes with the Court's conservatives, he still pivots left. Justice Kavanaugh wrote influential concurring opinions in the landmark abortion and Second Amendment cases. These concurrences narrowed the majority opinion by resolving difficult questions that were not yet in front of the Court.
By my count, since Justice Gorsuch's appointment, a Trump appointee has cast the decisive fifth vote in a 5-4 case that swung to the left a dozen times. To date, Justice Barrett has not cast the deciding vote in a 5-4 liberal case. But this tally only considers the Supreme Court's merits docket. The Supreme Court's emergency docket provides an even larger set of data points.
On the so-called "shadow" docket, five votes are needed to grant relief. Generally, these applications for emergency relief are decided by unsigned per curiam opinions. On occasion, one or more Justices will dissent from the denial or grant of relief. Since November 2020, Justices Thomas, Alito, and Gorsuch have consistently ruled together on emergency applications. Had Justices Kavanaugh and Barrett joined the conservative troika in each case, (3+2=5) full relief would have been granted.
In January 2021, the Harvest Rock Church and South Bay United Pentecostal Church challenged California's restrictions on in-person gatherings and singing during worship. The Court, by a 6-3 vote, ruled that the prohibition on indoor worship violated the Free Exercise Clause of the First Amendment. Justices Thomas, Alito, and Gorsuch went further, and declared unconstitutional the singing ban. Justices Barrett and Kavanaugh, however, left the singing ban in place. (This concurrence was Justice Barrett's first writing on the bench.) This 3-2 split on the emergency docket would repeat itself again and again.
In four cases, Justices Kavanaugh and Barrett declined to cast the deciding votes that would have blocked the enforcement of vaccine mandates: Dunn v. Austin, We The Patriots USA v. Hochul, Does 1-3 v. Mills, and Dr. A. v. Hochul. Eventually, Justices Kavanaugh and Barrett also likely declined to grant certiorari in Dr. A v. Hochul. (I say likely here, and elsewhere, because the Justices did not expressly state their positions, but we can reasonably infer how they voted.) Justices Thomas, Alito, and Gorsch would have heard the case. Meanwhile, in Austin v. U.S. Navy Seals 1-26, Justice Kavanaugh and likely Justice Barrett allowed the Navy to deny religious exemptions for the vaccine mandate.
This 3-2 split would fracture other cases on the emergency docket. The plaintiffs in Coalition for TJ v. Fairfax County School Board asked the Supreme Court to block an affirmative action policy at an elite public high school. Justices Thomas, Alito, and Gorsuch would have granted the application. Justices Kavanaugh and Barrett were silent. In Moore v. Harper, the republican North Carolina legislature asked the Supreme Court to block the state supreme court's finding of a partisan gerrymander. Justices Thomas, Alito, and Gorsuch would have granted the stay. Justice Kavanaugh and likely Justice Barrett declined to grant relief. (In June 2023, Justices Kavanaugh and Barrett would cast the fifth and sixth vote against the North Carolina legislature on the merits docket). In Alabama Association of Realtors v. HHS, the Court declined to block the federal eviction moratorium. Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application. Justice Kavanaugh concurred to explain why he would leave the policy in place, at least temporarily. (After the Biden administration called Kavanaugh's bluff, and continued the policy, the Court halted the moratorium by a 6-3 vote.) In NetChoice v. Paxton, Justices Kavanaugh and Barrett voted to block the enforcement of a Texas law that restricted social media sites. Justices Thomas, Alito, and Gorsuch would have allowed the regulations to go into effect.
Since Justice Barrett's confirmation, I count thirteen cases in which she and Justice Kavanaugh could have joined Justices Thomas, Alito, and Gorsuch on the emergency docket. But the duo chose not to. By contrast, Justices Barrett and Kavanaugh likely joined the Court's progressives in Lombardo v. St. Louis. That unsigned opinion gave another appeal to the family of a prisoner who died in police custody. Justices Thomas, Alito, and Gorsuch would have allowed the case to end. Ultimately, the lower court ruled against Lombardo's family again, and the Supreme Court denied certiorari over Justices Sotomayor and Jackson's dissent.
Prior to Justice Barrett's confirmation in October 2020, Justice Kavanuagh was often the odd man out on the emergency docket. I count at least five cases from before the presidential election, which challenged COVID-related voting procedures: Berger v. North Carolina State Board of Elections, Wise v. Circosta, Moore v. Circosta, Andino v. Middleton, and Republican National Committee v. Common Cause Rhode Island. In each case, Justices Thomas, Alito, and Gorsuch would have granted full relief. Justice Kavanaugh did not.
On the Supreme Court, four votes are required to grant certiorari. In rare cases, one or more Justices will dissent from the denial of certiorari. When there are three such dissents, we can reasonably infer that one more Justice was unwilling to give a "courtesy" fourth vote. Like with the emergency docket, there have been a string of high-profile cases where Justices Thomas, Alito, and Gorsuch dissented from the denial of certiorari. One more vote from a Trump appointee would have granted the petition. By my count, Justices Kavanaugh or Barrett could have been the fourth vote for certiorari in five important cases, but they chose not to.
In 2018, the Supreme Court denied appeals from Kansas and Louisiana, which excluded Planned Parenthood from Medicaid funding. Justice Kavanaugh, who could have provided the pivotal fourth vote, was silent in these cases. Arlene's Flowers v. Washington involved a florist who declined to make floral arrangements for a same-sex wedding. After nearly seven years of litigation, the Supreme Court denied review. Justices Thomas, Alito, and Gorsuch would have granted the petition. Justices Kavanaugh and Barrett were silent. Boardman v. Inslee involved a challenge to a Washington law that granted employee information to unions. The Court denied review, but Justices Thomas, Alito and Gorsuch would have granted certiorari. Justices Kavanaugh and Barrett allowed the case to conclude. Shoop v. Cunningham presented a challenge to a two-decade old murder conviction. Justices Thomas, Alito, and Gorsuch would have granted review, and summarily reversed the lower court judgment that ruled for the prisoner. Justices Kavanaugh and Barrett said nothing.
In Dignity Health v. Minton, California required a Catholic hospital to perform a hysterectomy on a transgender patient. The Court denied review, over the dissents of Justices Thomas, Alito, and Gorsuch. Alas, without the votes of Justices Kavanaugh or Barret, the Catholic hospital would be forced to perform the procedure. In a related case, Roman Catholic Diocese of Albany v. Emami, New York mandated that religious employers must fund abortions through their employee health plans. Justices Thomas, Alito, and Gorsuch would have granted certiorari immediately. But Justices Kavanaugh and Barrett kicked the can down the road, and let the New York courts consider the case in light of a recent Free Exercise Clause decision, Fulton v. City of Philadelphia.
The following year, the New York appellate division ruled that Fulton did not change the relevant standard, so the Diocese lost again. And why did Fulton not change the relevant standard? Because in Fulton, Justices Barrett and Kavanaugh declined to overrule Employment Division v. Smith, a decision that required courts to deferentially review laws that burden religion. Even when Justices Barrett and Kavanaugh joined a conservative majority opinion, they tempered its reach.
Meanwhile, Justices Thomas, Alito, and Gorsuch would have overruled Smith in Fulton. The relationship between Fulton and Catholic Diocese of Albany illustrates with clarity the gap between Justices Kavanaugh and Barrett on the one hand, and Justices Thomas, Alito, and Gorsuch on the other.
Critics of the Court should be at least somewhat grateful. Had President Trump nominated three Justices in the mold of Justices Alito and Thomas, none of the nearly three-dozen cases I mentioned above would have gone to the left, none of the moderating concurrences would have been written, and many of the emergency applications would have been granted. I'm not saying that the progressive glass is half-full–but they're lucky it's not empty. On the other hand, conservatives should be thrilled, but their cup does not exactly runneth over.