Supreme Court's Interesting New Math: 3-3-3

The 6-3 conservative majority isn't issuing decisions quite as expected, at least so far
By John Johnson,  Newser Staff
Posted Jun 18, 2021 9:40 AM CDT
Supreme Court's Interesting New Math: 3-3-3
Members of the Supreme Court pose for a photo in April. Seated from left are Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, and Sonia Sotomayor. Standing from left are Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett.   (Erin Schaff/The New York Times via AP, Pool)

When Amy Coney Barrett replaced Ruth Bader Ginsburg on the Supreme Court last year, it resulted in what is usually described as a 6-3 advantage for conservatives over liberals on the court. But two big decisions Thursday—one on ObamaCare and the other on a Catholic group that refuses to work with gay couples—suggest that a different kind of breakdown is happening on the court. Coverage:

  • In an analysis at CNN, Joan Biskupic writes that 3-3-3 seems to be the new pattern. One trio is the "center-right" of Chief Justice John Roberts, Brett Kavanaugh, and Barrett. Another trio is made up of liberals Stephen Breyer, Sonia Sotomayor, and Elena Kagan. And the last is made up of conservatives Clarence Thomas, Samuel Alito, and Neil Gorsuch.
  • In Thursday's rulings, the three liberals joined the center-right (as did Clarence Thomas) in the ruling that dismissed a challenge to ObamaCare. And though the court sided with the Catholic group in the other case, the protection offered was limited, and the decision went nowhere near as far as the more conservative justices wanted.

  • At Politico, Josh Gerstein notes that the three more conservative justices, particularly Alito, issued sharply worded critiques seemingly aimed at the other GOP appointees. "Some liberal legal commentators noted that the most carefully dissected rhetorical sparring is now taking place among members of the new six-justice conservative majority, with the three remaining liberal justices often left as mere spectators," Gerstein writes.
  • Alito, for instance, wrote in the Affordable Care Act case that "no one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats." And in the other case, which involved a foster care agency in Philadelphia, he complained that the court "has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state." As South Texas College of Law Professor Josh Blackman puts it to Politico: "I think Alito was just pissed."
  • The outcomes of Thursday's cases "mean the court potentially will close out Justice Amy Coney Barrett's first term with no watershed conservative victories," writes Greg Stohr at Bloomberg. "Although the court still has 15 remaining cases, including a clash over the Voting Rights Act, the term's theme so far has been more incrementalism than revolution." Stohr notes, however, that a truer test might come in the fall, when Roberts has scheduled an abortion case with the potential to dismantle Roe v. Wade.
  • Matt Ford at the New Republic digs more into the Philadelphia decision and sums up the narrow outcome: The court "is still strongly inclined to favor litigants who bring religious freedom claims before it, and has handed down a series of major rulings in their favor in recent years," he writes. But "the justices appear unwilling to rule conclusively that religious beliefs can overcome anti-discrimination laws that protect gay and transgender Americans in all cases—at least for now."
(Did former President Trump inadvertently save ObamaCare?)

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