The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What Message Does Emil Bove's Nomination Send To Justices Thomas and Alito?
Do you really think Justices Thomas and Alito would prefer another Justice Barrett?
On Friday, the Wall Street Journal editorialized against Emil Bove's nomination. The Journal echoed points by Ed Whelan and others that fewer judges will step down if they think Trump will replace them with judges like Bove--including Justices Thomas and Alito:
The President should understand that his attacks on judicial conservatives will hurt his own agenda and legacy. His social-media post is the talk of the judicial ranks, and he is making no friends. Mr. Trump is likely to see fewer judges retire, lest they be replaced by partisan hacks. That includes Justices Samuel Alito (age 75) and Clarence Thomas (76). Keep exercising daily, good Justices.
Like Whelan, the Journal gets things 100% backwards. In Trump-related cases, Justices Thomas and Alito are dissenting alone. Look at A.A.R.P. v. Trump. Where are the three Trump appointees on that case? Justice Kavanaugh was the closest, but he still concurred. More generally, Justice Gorsuch has voted with Alito and Thomas on most religious liberty issues and separation of powers cases, but who can forget Bostock, McGirt, Brackeen, the tax return cases, and others. And as Adam Feldman's recent analysis shows, Justice Barrett is solidifying herself as the swing Justice. I appreciate this AI graphic from Adam's post. (Update: Jon Adler writes that Roberts, and not Barrett, is the true swing Justices. Well, yeah. But Roberts only makes 4. He needs to recruit Kavanaugh or Barrett to make a majority. And I'll let the Wall of Receipts speak for itself.)
If I had to guess, Justices Thomas and Alito would not want someone like the three Trump appointees to replace them. They would want someone who votes like them. Bove would likely fill the mold. Indeed, if the same sorts of people are advising Trump on his next batch of Supreme Court nominee who advised on his first batch, Thomas and Alito would just as well hold on.
Meanwhile, Politico quotes an unnamed conservative "consultant" who apparently has such strong insights, he cannot be named.
For Trump's allies, the Federalist Society now represents the old guard that "hide[s] behind a philosophy" instead of supporting the Republican cause, said one conservative consultant, who was granted anonymity in order to speak freely about dynamics in the Republican legal world. They want more people like Supreme Court Justice Samuel Alito and fewer people like Justice Amy Coney Barrett, the person said. . . .
"They don't want someone who's just going to be like, 'We're going to follow the law and do the originalistic thing, and whatever the result is, so may be it,'" said the consultant. "They want someone [who] can figure out how to get the result that they want."
Okay "originalistic" is not a real thing. I can't recall an actual originalist who has ever used this word. It mocks originalism. I have my doubts about this "conservative consultant's" insights into the conservative legal movement.
In any event, this quote backfires, big league. Justices Thomas and Alito are the standard-bearers for the conservative legal movement. This so-called conservative, by calling Emil Bove a political hack, is calling Thomas and Alito a hack.
More often than not, the difference between Justices Alito and Thomas, and their colleagues, is not jurisprudence, but courage. Alito and Thomas have been saying this for years. Only now, people are listening.
A kind note to Politico and other outlets: you can call me to get an on-the-record quote. You don't need to quote anonymous posters. Much of the reporting on this kerfuffle has been unusually one-sided. Quoting a Republican who disagrees with the Bove nomination does't count as "balance."
